R. v. 974649 Ontario Inc.

R. v. 974649 Ontario Inc. Collection Decisions of the Court of Appeal Date 1998-11-03 Docket numbers C22621 Judges McKinlay, Hilda Margaret; Austin, Allan McNiece; O’Connor, Dennis Subject Criminal Decision Content DATE: 19981113 DOCKET: C22621 COURT OF APPEAL FOR ONTARIO McKINLAY, AUSTIN and O'CONNOR JJ.A. BETWEEN: ) ) Norman A. Keith HER MAJESTY THE QUEEN ) for the appellants ) Respondent ) ) - and - ) Hart Schwartz, Andrea Esson, ) and Line Forestier for the 974649 ONTARIO INC. c.o.b. as DUNEDIN) respondent CONSTRUCTION (1992) and BOB HOY ) ) Appellants ) ) Heard: September 23 & 24, ) 1998 O'CONNOR J.A.: [1] In proceedings under the Provincial Offences Act R.S.O. 1990, c. P.33 (the "POA") the Crown was found to have breached the appellants' rights under s. 7 of the Charter by failing to make proper pre-trial disclosure. In addition to ordering the disclosure, the Justice of the Peace, acting as a trial judge under the POA ("the provincial offences court") ordered the Crown to pay $2,000 to the appellants for the legal costs incurred on the disclosure motion ("the cost order"). [2] On an application by the Crown for judicial review, McRae J. found that the provincial offences court did not have jurisdiction to make the cost order because it was not a court of competent jurisdiction within the meaning of s. 24(1) of the Charter for the purpose of making that type of order. The decision was subsequently reported at (1995), 25 O.R. (3d) 420. The appellants appeal that decision. For the reasons set out below, I am of the view that the appeal should be allowed. FACTS [3] The appellants, 974649 Ontario Inc. c.o.b. as Dunedin Construction (1992), as an employer and Bob Hoy, as a supervisor, were charged under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, with failing to ensure that measures and procedures prescribed by s. 234 of Regulation 213/91 were complied with on a construction project. Counsel acting on behalf of Her Majesty The Queen in Right of Ontario (the "Crown") prosecuted these charges. [4] On May 15, 1994, and again on May 30, 1994, counsel for the appellants requested disclosure of material in the Ministry of Labour files relating to the charges including the prosecution approval form prepared by that Ministry. [5] Although the Crown did provide substantial material in response to the disclosure requests, it did not disclose the prosecution approval form, taking the position that it was protected by solicitor-client privilege. [6] The appellants brought a motion before the provincial offences court for an order that the charges be stayed and an order that the Crown pay their costs to be fixed on a solicitor- client scale. The grounds for the motion were twofold: that the charges were unconstitutionally vague and that the Crown had failed to disclose the prosecution approval form. [7] The provincial offences court found that the charges did provide sufficient detail and dismissed that aspect of the motion. However, the court allowed the motion on the issue of disclosure finding that the failure to disclose the prosecution approval form was a breach of the appellants' Charter rights. [8] The court refused to stay the proceeding but rather ruled that the appropriate remedy was an order that the Crown disclose the prosecution approval form and that it pay to the appellants $2,000 for legal costs incurred in connection with the motion. [9] The Crown complied with the disclosure order; however, it applied to the General Division under s. 140(1) of the POA for an order in the nature of certiorari to quash the cost order on the basis that the provincial offences court did not have jurisdiction to make that order and alternatively, if it did, that this was not a proper case to have done so. McRae J. found there was no jurisdiction and quashed the cost order. Having done so, he did not address the alternative issue whether this was an appropriate case to make such an order. ANALYSIS [10] For purposes of this appeal, the Crown concedes the following: (a) the Crown's failure to make proper disclosure infringed the appellants' Charter rights described by the Supreme Court of Canada in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1. In that case, the court held that the right to disclosure is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice protected by s. 7 of the Charter; (b) the provincial offences court had jurisdiction to find there had been a breach of the Charter. This position is consistent with the view that trial judges in extant cases are in the best position to address issues of alleged breaches of an accused's rights under the Charter to a fair trial or to make full answer and defence. See for example R. v. Mills (1986), 29 D.L.R. (4th) 161 at 173-74. (c) The provincial offences court was a court of competent jurisdiction under s. 24(1) of the Charter to make the order compelling disclosure of the document in question. This authority flows from the broader power of the provincial offences court to stay proceedings in appropriate circumstances which emanates from its power to control its own process and from s. 46(2) of the POA which confers on a defendant the right to make full answer and defence. See R. v. Young (1984), 13 C.C.C. (3d) 1 (Ont. C.A.). [11] The only issue raised on this appeal is whether the provincial offences court had jurisdiction to make the cost order. That jurisdiction depends on whether the provincial offences court is a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter. [12] Section 24(1) provides as follows: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [Emphasis added.] The Mills Test [13] A consideration of the meaning of "court of competent jurisdiction" under s. 24(1) centres on the three-part test established by the Supreme Court of Canada in R. v. Mills, supra. At p. 177, McIntyre J. quoted with approval the conclusion of Brooke J.A. in R. v. Morgantaler (1985), 48 O.R. (2d) 519 at 525: The meaning to be ascribed to the phrase "court of competent jurisdiction" in s. 24(1) of the Charter has been the subject of consideration in a number of cases. The weight of authority is that s. 24(1) does not create courts of competent jurisdiction, but merely vests additional powers in courts which are already found to be competent independently of the Charter. We agree with Mr. Doherty that a court is competent if it has jurisdiction, conferred by statute, over the person and the subject-matter in question and, in addition, has authority to make the order sought. [Emphasis added.] [14] In separate reasons Lamer J., as he then was, dissenting on another point, reached the same conclusion. He said at p. 206: A court of competent jurisdiction is a court that has jurisdiction over the person and the subject-matter, as well as jurisdiction to order, under the criminal or penal law, the remedy sought pursuant to the Charter. [15] Subsequent decisions of the Supreme Court of Canada have confirmed the analytical approach adopted in Mills. In Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.). McLachlin J., writing for the majority, held at p. 606: It follows from Mills that statutory tribunals created by Parliament or the legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject- matter of the dispute and are empowered to make the orders sought. See also Mooring v. Canada (National Parole Board) (1996), 132 D.L.R. (4th) 56, per Sopinka J. at p. 67 and per Major J. at p. 82. [16] The appellants argue that recent decisions have altered the third requirement of the Mills test. I do not agree. The three-part test established in Mills continues to be the correct approach to determine if a court is a court of competent jurisdiction within the meaning of s. 24(1). [17] In this case it is indisputable that the provincial offences court had jurisdiction over the parties, those being the Crown and the appellants, and jurisdiction over the subject matter, that being the jurisdiction over the offences with which the appellants were charged. [18] The remaining issue is whether the provincial offences court had authority, independently of the Charter, to make orders which satisfy the third requirement of Mills, namely, the authority to make the cost order sought. [19] I will consider this requirement by first examining in what circumstances, if any, the provincial offences court has authority to make an order for the payment of legal costs by the Crown; and then by considering whether s. 24(1) expands the grounds upon which that authority can be exercised to include infringements of the Charter. Jurisdiction of Provincial Offences Court [20] The provincial offences court is created by statute and its jurisdiction is limited to that conferred expressly or by necessary implication by statute. It is not a court of superior jurisdiction and it does not have inherent powers nor does it have the powers held by courts at common law or equity. [21] The appellants argue that ss. 29(5) and 90(2) of the POA confer the authority on the provincial offences court to order costs against the Crown in the specific circumstances of those sections.1 I agree that there is authority under s. 90(2). [22] Section 90(1) and (2) provide as follows: 90. (1) The validity of any proceeding is not affected by, (a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or (b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate. (2) Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs. [Emphasis added.] [23] The ordinary meaning of the words "may make such order as the court considers appropriate" includes the authority to award costs against the Crown. As McIntyre J. said in Mills when referring to the use of similar language in s. 24(1) of the Charter, "it is difficult to imagine language that would give the court a wider more unfettered discretion." [24] There is nothing in the language of the section which limits or restricts the normal meaning of this language. The wording of s. 90(2) which specifically authorizes orders under s. 60 for the payment of costs of witnesses is inclusive and does not purport to narrow the ordinary meaning of the language that precedes it. [25] Unlike other sections in the Act which confer only the authority to order the payment of costs of witnesses (s. 29(3) B change of venue, s. 37(1) B amendment of information, and s. 53 B failure of prosecutor to attend and s. 60(2) B the general power), s. 90(2) confers a broad and general power that includes, but it is not limited to, ordering the payment of witness costs under s. 60. [26] The specific reference to s. 60 in s. 90(2) ensures that an order for the costs of a witness will be limited by the amount authorized by the regulation referred to in s. 60. The reference to s. 60 does not suggest an intention to otherwise limit the authority conferred by the section. [27] The Crown argues that because s. 90(2) uses general language and does not specifically confer the authority to award the payments of legal costs, as is the case in ss. 129(1) and 139(3) for appeals and s. 142(5) for reviews, the authority conferred by s. 90(2) should be interpreted to exclude that specific authority. [28] Relying upon Reference Re National Energy Board (1986), 29 D.L.R. (4th) 35 (F.C.A.), the Crown submits that the authority to award costs in specified situations raises the implication that such authority is not conferred elsewhere in the same legislation. This implied exclusion is often referred to by the maxim expressio unius est exclusio alterius. [29] In the National Energy Board case, the court first examined the section which it was argued gave the Board authority to award costs and concluded that because of its wording and context the authority conferred by that section was limited to evidence gathering powers. The court then found support for this conclusion because Parliament had conferred the specific authority to award costs in other sections. [30] That case is distinguishable. Section 90(2) is not limited by its wording or its context. In my view, the broad discretion conferred by the ordinary meaning of the language of s. 90(2) is not restricted by a negative implication resulting from the provision of a specific, narrower authority to be exercised in different circumstances elsewhere in the POA. [31] Further, I do not find anything in the legislative purpose of the POA which supports an argument to narrow the ordinary meaning of the words in s. 90(2). [32] Section 2(1) sets out the purpose of the POA as follows: The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences. [33] Prior to the enactment of the POA in 1979, the Summary Convictions Act, R.S.O. 1970, c. 450 incorporated the procedural provisions of the Criminal Code that applied to prosecutions of summary conviction offences. The purpose of the POA was to reduce or eliminate procedural difficulties and to streamline the procedural regime for provincial offences. The Honourable R. Roy McMurtry, Q.C., then Attorney General for the Province of Ontario described the purpose of the Act in the following passage: ...the proposed Provincial Offences Act ... creates a clear, self-contained procedural code to simplify procedures, eliminate technicalities, enhance procedural rights and protections, and remove the obstacle of delay from the assertion of rights and the conclusion of prosecutions.2 [34] The primary purpose of s. 90 is to eliminate, in all circumstances, challenges to the validity of a provincial offence proceeding resulting from an irregularity or defect in the process giving notice of that proceeding. In that sense, it simplifies the procedures for provincial offence proceedings. [35] From the Crown's standpoint, the enactment of s. 90 is a procedural advantage and correspondingly for some defendants it may be a disadvantage in that procedural objections which might have otherwise been available are eliminated. [36] It is important to note that the authority to make remedial orders under s. 90(2) is limited to situations where a defendant has been misled. It is reasonable to surmise that in some cases the defendant who has been misled will have been prejudiced. [37] Take for example the case where a defendant receives a notice of a provincial offence proceeding, retains counsel, attends at trial only to learn that the notice of proceeding is misleading. Although the Crown is entitled to rely on s. 90(1) so that the validity of the proceeding is not affected, an adjournment may be required in order to allow the defendant an opportunity to properly prepare to answer the actual charge. [38] In similar situations it is not uncommon for courts or tribunals, with authority, to make cost orders against the party responsible for the irregular or defective notice which has necessitated the adjournment. See for example, Rule 26.01 of the Rules of Civil Procedure and s. 601(5) of the Criminal Code.3 [39] The inclusion of the authority to make an order of costs against the Crown in s.90(2) is rationally connected to the subject matter of the section and provides a remedial authority that in some instances would be a fair and reasonable response to the circumstances encompassed by that section. [40] In my view, a remedial authority that would enable a court to address the prejudice to a defendant that results from the simplified procedures set out in s. 90 is not inconsistent with the purpose of the Act. It is, in effect, a legislative tradeoff. [41] For the reasons above, I am of the view, that s. 90(2) of the POA includes the authority to make an order of costs against the Crown. [42] The appellants also argue that s. 29(5) of the POA confers the same authority. It provides: (5) The court may, in an order made on a motion by the prosecutor under subsection (3) or (4), prescribe conditions that it thinks proper with respect to the payment of additional expenses caused to the defendant as a result of the change of venue. [Emphasis added.] [43] In its broadest meaning the word "expenses" could include amounts which a defendant is obligated to pay for legal fees. However, in my view, in the context of the POA the word "expenses" does not include legal fees. [44] "Expenses" is also used in s. 60(2) which provides: (2) The court may, in its discretion, order costs towards fees and expenses reasonably incurred by or on behalf of witnesses in amounts not exceeding the maximum fixed by the regulations, to be paid. [Emphasis added.] [45] The regulation referred to in s. 60(2) is Regulation 945 and it provides for payment of minimum amounts for matters such as fees to cover travel expenses and each day in attendance for witnesses. [46] Regulation 945 does not include amounts for legal fees. The logical extension is that the meaning of the word "expenses" used in s. 60(2) also does not include legal fees. [47] Assuming that the legislature has used the word "expenses" consistently in the POA, I conclude that the word "expenses" has the same meaning in s. 29(5) as it does in s. 60(2) and therefore does not include legal fees. Expanding Jurisdiction B s. 24(1) [48] Having concluded that the provincial offences court has the authority to order costs against the Crown under s. 90(2) of the POA, it remains to be determined whether that authority is a sufficient basis to find that the provincial offences court has "the authority to make the order sought" within the meaning of the third branch of the Mills test? If it is, the effect of s. 24(1) of the Charter is to expand or enlarge the grounds upon which that jurisdiction can be exercised to include an infringement of the Charter. [49] The rationale for the third requirement in Mills is that Parliament and the legislatures have the responsibility for fixing the jurisdiction of the courts. The Charter should be interpreted and applied within that existing jurisdictional framework. In Mills, McIntyre J. said at p. 171: To begin with, it must be recognized that the jurisdiction of the various courts of Canada is fixed by the Legislatures of the various provinces and by the Parliament of Canada. It is not for the judges to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial reach. In fact, the jurisdictional boundaries created by Parliament and the Legislatures are for the very purpose of restraining the courts by confining their actions to their allotted spheres. In s. 24(1) of the Charter the right has been given, upon the alleged infringement or denial of a Charter right, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Charter has made no attempt to fix or limit the jurisdiction to hear such applications. And further at p. 172, McIntyre J. said: The absence of jurisdictional provisions and directions in the Charter confirms the view that the Charter was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure. There is no need for special procedures and rules to give it full and adequate effect. [50] The requirement in Mills that a court has "the authority to make the order sought" is not a requirement that it have authority to make the order for a Charter breach. That authority flows from s. 24(1). Rather, the requirement is that the court have the authority to make the type of order sought within the jurisdiction it exercises, independently of the Charter. If it were otherwise there would be no need for s. 24(1). [51] That being said, the Crown argues that an authority such as that found in s. 90(2), which may only be exercised in limited and specific circumstances, is not a sufficient jurisdictional base upon which to found remedial authority for Charter breaches under s. 24(1). The Crown submits that it is necessary to anchor the s. 24(1) jurisdiction to a more broadly based power than that found in s. 90(2). [52] The Crown does not suggest, however, where the line between an authority that may be exercised in limited circumstances and one of broader application should be drawn nor what principle would apply in determining that one existing jurisdiction is sufficient and another is not. [53] In my view, once it is accepted that s. 24(1) expands or enlarges the grounds upon which an existing jurisdiction may be exercised, there is no reason to distinguish some existing jurisdictions from others on the basis of the breadth of circumstances in which that jurisdiction applies. [54] Interpreting the third requirement in Mills so that even a narrowly based remedial authority conferred independently of the Charter is sufficient basis for a court to be competent to make the same type of order under s. 24(1), will result in more alternatives being available to courts making remedial orders for Charter breaches. [55] This has two important advantages; first, it will provide a court with greater scope to address the actual prejudice that has resulted from the breach it has found to have occurred. The Supreme Court has held that the question of prejudice resulting from a Charter breach is a matter that relates to the remedy to be fashioned under s. 24(1). It has also held that the remedies should be tailored to the Charter right that has been breached and that it is hoped that trial judges will devise imaginative remedies to serve the needs of individual cases. See R. v. Carosella (1997), 142 D.L.R. (4th) 595 (S.C.C.) at 612; R. v. Rahey (1987), 39 D.L.R. (4th) 481 (S.C.C.) at 502; R. v. Mills, supra, at p. 173. [56] It is logical that a court with a broader remedial authority is more able to fashion a reasonable and appropriate remedy suited to the circumstances of the particular case. [57] Second, applying the Mills test so that courts making orders under s. 24(1) have more remedial options will promote efficiency and accessibility to the courts for Charter breaches. There is an obvious advantage if the court that finds a breach has the remedial powers necessary to address the resulting prejudice. [58] This point is made clear by the facts of the present case. In arguing that there is no jurisdiction under s. 24(1) to make the cost order, the Crown suggests that if the defendants are entitled to be compensated for the legal costs incurred in enforcing their Charter rights, the proper jurisdictional route is a civil action. Assuming that an award of costs is an appropriate remedy, it would be unfortunate if the only means available for recovery was to bring a separate civil proceeding. [59] The Alberta Court of Appeal considered this issue in R. v. Pang (1994), 95 C.C.C. (3d) 60 (Alta. C.A.). In that case, the court held that the limited jurisdiction conferred on the Provincial Court by the Criminal Code to order the payment of legal costs against the Crown was a sufficient basis to make a similar order under s. 24(1) of the Charter. [60] Writing for the court, Harradence J.A., discussed the advantage of greater remedial alternatives under s. 24(1). At p. 72, he said: It would be inconvenient, uneconomical and time- consuming to deprive the Provincial Court of the ability to award the remedy of costs and force individuals to move to the Court of Queen's Bench for one thing and remain at Provincial Court for others. [61] And further at p. 72 he quoted with approval the reasons of the trial judge, Her Honour Judge Van de Veen J. as follows: It would not be a prompt, economical or efficient use of the administration of justice to require an accused to seek a remedy such as that sought in the case before me, the stay of proceedings, in provincial court, but have to apply to the Court of Queen's Bench for the monetary remedy in the nature of costs either at the same time or after the application for the stay has been heard in the Provincial Court. [62] Applying the Mills test so that even an existing remedial jurisdiction that may be exercised in limited circumstances is sufficient to enable a court to make the same type of remedial order under s. 24(1) does not, it seems to me, run afoul of the rationale underlying the third requirement in Mills that is set out in paragraph 49 above. [63] When Parliament or a legislature has conferred a remedial authority to be exercised in some, albeit limited circumstances, that jurisdiction is part of the existing statutorily created jurisdictional scheme. Section 24(1) does not create a new jurisdiction but rather it enlarges the grounds upon which the existing jurisdiction may be exercised. To use the language of McIntyre J. in Mills, the s. 24(1) jurisdiction fits within the existing scheme of Canadian legal procedure. [64] An analogous situation to the present was addressed in R. v. Pawlowski (1993), 101 D.L.R. (4th) 267 (C.A.) where this court considered the jurisdiction of a superior court to make an order under s. 24(1) of the Charter requiring the Crown to pay costs in a criminal proceeding. Before the Charter, superior courts had a limited inherent jurisdiction to award costs against the Crown only where there had been serious misconduct on the part of the prosecution. [65] In R. v. Pawlowski, the court found that although there had been a Charter breach there had been no prosecutorial misconduct. However, Galligan J.A., for the majority, found that s. 24(1) enlarged the grounds upon which the existing, rarely used power, could be exercised. At pp. 270-71, he said: There is no statutory authority which authorized the making of this order for costs. It seems well settled, however, that superior courts have the inherent jurisdiction to award costs against the Crown in a criminal case. That power has been exercised only rarely and, before the advent of s. 24(1) of the Charter, could be exercised only where there was serious misconduct on the part of the prosecution: see R. v. Ouellette (1980), 52 C.C.C. (2d) 336, 111 D.L.R. (3d) 216, [1980] 1 S.C.R. 568, and A.-G. Que. v. Cronier (1981), 63 C.C.C. (2d) 437, 23 C.R. (3d) 97 (Que. C.A.). Chadwick J. found that there was no misconduct on the part of the Crown which would justify an award of costs against it based upon pre-Charter jurisprudence. He held, however, that 24(1) of the Charter enlarged the grounds upon which a court could exercise its discretion to grant costs. Section 24(1) enables one whose Charter rights have been infringed to apply to a "court of competent jurisdiction" for such remedy as the court considers appropriate and just in the circumstances. If a superior court of criminal jurisdiction did not have inherent jurisdiction to award costs against the Crown, it would not be a "court of competent jurisdiction" to grant a costs remedy for the infringement of a Charter right. However, such a court has jurisdiction to award costs against the Crown in a criminal case and, in my opinion, the clear effect of s. 24(1) is to enlarge the grounds upon which that jurisdiction can be exercised to include a Charter infringement, along with misconduct by the prosecution. [66] For the purpose of s. 24(1) there does not seem to be any reason to distinguish an existing inherent jurisdiction from an existing statutory jurisdiction. [67] In Pang, supra, the Alberta Court of Appeal referred to Pawlowski and held that no such distinction should be made. At p. 70, Harradence J.A. said: In my view, there is no material difference between the situation of the superior court and that of the Provincial Court. The Provincial Court prior to the Charter could award costs against the Crown, albeit in limited circumstances. These circumstances were circumscribed by statute, the Criminal Code, whereas in the case of the superior court it was circumscribed by common law. In any event, the Provincial Court had jurisdiction to grant the remedy of costs as codified in ss. 601(5), 803(4), 809(1) and 840 of the Criminal Code. The Charter has not enlarged this jurisdiction, but rather to use Galligan J.A.'s words, "the clear effect of s. 24(1) is to enlarge the grounds upon which that jurisdiction can be exercised to include a Charter infringement".4 [68] And further at pp. 70-71, he also said: It must be remembered, s. 24(1) of the Charter does not say where the court must derive its jurisdiction. Therefore, I see no difference whether the court derives its jurisdiction from its inherent jurisdiction which is circumscribed by the common law, or if it derives jurisdiction from statute, which is circumscribed by statute. Both had jurisdiction prior to the Charter to award the remedy of costs against the Crown. The Charter "enlarges the grounds upon which that jurisdiction can be exercised". [69] A similar conclusion was reached by Goodearle J. in R. v. Jedynack (1994), 16 O.R. (3d) 612 (Ont. Gen. Div.). I agree with the conclusions in Pang and Jedynack. [70] Although the jurisdiction of the Provincial Court under the Criminal Code to order costs against the Crown which was the basis of the decisions in Pang and Jedynack is arguably broader than the jurisdiction of the provincial offences court under s. 90(2) of the POA, it is nevertheless a very limited and specific statutory jurisdiction. For purposes of s. 24(1), I see no reason to distinguish the two situations. I am therefore of the view that s. 90(2) of the POA is a sufficient authority upon which to found jurisdiction under s. 24(1) of the Charter to order payment of costs by the Crown. [71] It was open to the provincial offences court to make the cost order and with respect, I find that McRae J. erred in finding that it lacked jurisdiction under s. 24(1) to do so. [72] Having concluded that the provincial offences court did not have jurisdiction, McRae J. did not decide whether it erred in ordering costs in the particular circumstances of this case. Counsel have agreed that in the event this appeal is allowed, the case should be returned to the General Division to address that issue. The Crown has indicated that it will seek to lead additional evidence. Because of the agreement, the Crown did not seek to lead that evidence on this appeal. [73] For those reasons, I would therefore allow the appeal and return the case to the General Division to consider the remaining issue whether the provincial offences court erred in making the cost order in the circumstances of this case. [74] Counsel took the position that there should be no order as to costs on this appeal and I would so direct. Released: November 13, 1998 _______________________________ 1 The appellants also argue that s. 60(2), which authorizes orders for the payment of witness costs, is a sufficient statutory authority upon which to ground jurisdiction under the third branch of the Mills test. For the reason given by McRae J., I disagree with this submission. Section 60(1) and (2) provide as follows: (1) Upon conviction, the defendant is liable to pay to the court an amount by way of costs that is fixed by the regulations. (2) The court may, in its discretion, order costs, towards fees and expenses reasonably incurred by or on behalf of witnesses in amounts not exceeding the maximum fixed by the regulations, to be paid (a) to the court or prosecutor by the defendant; or (b) to the defendant by the person who laid the information or issued the certificate, as the case may be, but where the proceeding is commenced by means of a certificate, the total of such costs shall not exceed $100. 2 Provincial Offences Procedure: An Analysis and Explanation of Legislative Proposals: The Provincial Offences Act, 1978 and the Provincial Courts Amendment Act, 1978, Ministry of the Attorney General, April, 1978 at p. 1. 3 Rule 26.01 provides: On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. Section 601(5) of the Criminal Code provides: 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. 4 s. 601.(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. s. 803.(4) Where the prosecutor does not appear at the time and place appointed for the resumption of an adjourned trial, the summary conviction court may dismiss the information with or without costs. s. 809.(1) The summary conviction court may in its discretion award and order such costs as it considers reasonable and not inconsistent with such of the fees established by section 840 as may be taken or allowed in proceedings before that summary conviction court, to be paid 1.to the informant by the defendant, where the summary conviction court convicts or makes an order against the defendant; or 2.to the defendant by the informant, where the summary conviction court dismisses an information.