Date: 20011019
Docket No.: CAC 169774
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Ryan, 2001 NSCA 149]
Roscoe, Flinn and Oland, JJ.A.
BETWEEN:
Appellant
- and -
Respondent
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REASONS FOR JUDGMENT
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Counsel: Peter P. Rosinski, for the appellant
Frank E. DeMont for the respondent
Appeal Heard: October 2, 2001
Judgment Delivered: October 19, 2001
THE COURT: Appeal allowed per reasons for judgment of Oland, J.A.; Roscoe and Flinn JJ.A. concurring.
OLAND, J.A.:
[1] The Crown appeals a decision of MacLellan, J. dated February 2, 2001 wherein he awarded costs against the Crown following adjournment of the trial of the respondent, Craig Baxter Ryan. The trial judge found that Mr. Ryan had been prejudiced in his defence. Relying on s. 601(5) of the Criminal Code, he awarded Mr. Ryan costs of $3,500 which he determined to be his throw-away costs.
[2] Mr. Ryan had been scheduled to be tried on an indictment containing six counts, two of sexual intercourse with a female not his wife and under the age of 14 years, at two separate locations contrary to s. 146(1) and four of indecent assault at four separate locations contrary to s. 149. The complainant was the same person for all six counts. The trial was to start January 29, 2001.
[3] The Crown and defence counsel subsequently agreed to certain amendments to the indictment. Counsel for Mr. Ryan expected the amended indictment would contain two counts, one under s. 146(1) and one under s. 149 specifying three separate locations, and the time frame pertaining to both counts to be narrowed. By indictment dated January 26, 2001 the Crown amended the original six count indictment to a three count indictment with all three within the narrowed time frame. The first count combined two of the counts under s. 146(1) in the original indictment and the third count combined two of the four counts under s. 149. Two other counts of indecent assault were dropped. Under the second count of this amended indictment, Mr. Ryan was charged that he had indecently assaulted the complainant with a dog, contrary to s. 149. The Crown proceeded with this second count by way of direct indictment dated Friday, January 26, 2001, a copy of which was faxed to defence counsel late the next day.
[4] The second count arose from information provided by the complainant during the two weeks preceding the direct indictment. On January 15, 2001 she reported two incidents during an interview by the Crown Attorney. Defence counsel was notified by a letter faxed to him the following day. On January 27th the complainant reported a third incident and further disclosure was made to defence counsel over that weekend.
[5] On Monday, January 29, 2001, the day the trial was scheduled to begin, Justice MacLellan adjourned the matter at the request of defence counsel. At the adjourned hearing on February 2, 2001, defence counsel alleged violations of Mr. Ryan’s constitutional rights under s. 7 and 11(d) and sought costs pursuant to s. 24(1) of the Charter of Rights and Freedoms. In the alternative, it sought costs pursuant to the court’s inherent jurisdiction to award costs against the Crown in a criminal case.
[6] Defence counsel did not include s. 601(5) of the Code as a ground for an award of costs in his argument before the trial judge. That provision was raised by the trial judge during submissions by counsel. In his decision, he stated:
Findings. I find here that the accused, Mr. Ryan, was prejudiced in his defence by the late disclosure by the complainant where that disclosure was used as a basis for a new count proceeded with only days before his scheduled trial.
. . . Section 601(5) of the Criminal Code is a statutory right in which a trial judge is given the discretion to award costs for situations such as before me. Costs under Section 601(5), I believe, can be awarded without a finding that the Crown acted improperly.
I find here that I am not satisfied that it has been shown that the Crown acted improperly once the new disclosure was made by the complainant. If that was the test, I would not award costs.
. . . I do find that the accused has suffered financially because of the late disclosure and the laying of the new charge. His counsel had to prepare for the new charge in a very short period of time.
I would, therefore, use the discretionary power under Section 601(5) and award costs against the Crown.
1) The Crown applies for leave to appeal pursuant to s. 676.1 of the Code. In such appeals, this court will interfere with a discretionary order to award costs only if wrong principles of law have been applied or patent injustice would result: R. v. Cole (2000), 143 C.C.C. (3d) 417 (N.S.C.A.).
[7] In my view the trial judge erred in ordering costs against the Crown on the basis of s. 601(5) of the Code. For the purpose of the ordinary meaning rule of statutory interpretation, the “ordinary meaning” is the meaning understood upon the reading of the words in their immediate context which, for words of a statute generally, consists of the section or subsection in which they appear: see Driedger on the Construction of Statutes (3rd ed., 1994) at p. 8. The words of s. 601(5) are not to be read in isolation but in the context of s. 601 as a whole.
[8] The relevant portions of s. 601 read:
601. (1) An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court before which the proceedings take place, and the court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.
(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and
(a) a count in the indictment as preferred; or
(b) a count in the indictment
(i) as amended, or
(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.
(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears
(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;
(b) that the indictment or a count thereof
(i) fails to state or states defectively anything that is requisite to constitute the offence,
(ii) does not negative an exception that should be negatived,
(iii) is in any way defective in substance,
and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or
(c) that the indictment or a count thereof is in any way defective in form.
. . .
(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable. (Emphasis added)
[9] In my view, s. 601(5) of the Code has no application in this case. Section 601 deals with motions to quash indictments and gives a trial judge power to amend an indictment as stipulated in that provision, namely to cure certain defects in substance or form and to conform to the evidence. The second count in the amended indictment which was added by way of direct indictment was not a “variance, error or omission in an indictment or a count” as contemplated by s. 601 and described in s. 601(1) to 601(3). Rather, this count arose as a result of new information received by the Crown shortly before trial. As well, it was added by the Crown and was not an amendment ordered by a judge pursuant to s. 601(1) following an objection taken by motion or application nor one made by a judge pursuant to s. 601(2) or s. 601(3).
[10] Furthermore, in the circumstances of this case, I see no justification for an award of costs against the Crown on the basis of inherent jurisdiction as urged by defence counsel. The inherent jurisdiction of the superior courts to award costs against the Crown in a criminal case is to be exercised only where there was serious misconduct on the part of the prosecution: see R. v. Pawlowski, [1993] O.J. No. 554 (application for leave to appeal to the Supreme Court of Canada dismissed). Generally a criminal defendant is not entitled to costs unless there is something “remarkable” or “unique” about the case or something “oppressive” or “improper” about the conduct of the prosecution: R. v. Pottier, [1999] N.S.J. No. 95 at § 7. The trial judge here found that the Crown had not acted improperly once the new disclosure was made by the complainant.
[11] Nor is there any basis for an award of costs pursuant to s. 24(1) of the Charter. There was no finding by the trial judge that any Charter rights had been breached. Consequently he could not consider that remedy and did not do so in his decision.
[12] I would grant leave to appeal, allow the appeal, and set aside the award of costs.
Oland, J.A.
Concurred in:
Roscoe, J.A.
Flinn, J.A.