R v. Rankin

R v. Rankin Collection Decisions of the Court of Appeal Date 2007-06-12 Neutral citation 2007 ONCA 426 Docket numbers M34535 Judges Gillese, Eileen E. Subject Criminal Decision Content CITATION: R v. Rankin, 2007 ONCA 426 DATE: 20070612 DOCKET: M34535 COURT OF APPEAL FOR ONTARIO GILLESE J.A. (In Chambers) BETWEEN: HER MAJESTY THE QUEEN Moving Party and ANDREW RANKIN Responding Party Michael Code and Kelley M. McKinnon for the moving party, the Ontario Securities Commission Brian H. Greenspan and Joanne K. Stuart for the responding party Heard: February 2, 2007 On a motion for leave to appeal, under s. 131 of the Provincial Offences Act, the judgment of Justice Ian V. B. Norderheimer of the Superior Court of Justice dated November 9, 2006, with reasons reported at [2006] O.J. No. 4579, allowing an appeal from the convictions entered by Justice Ramez Khawly of the Ontario Court of Justice on July 15, 2005, with reasons reported at [2005] O.J. No. 3202. COST ENDORSEMENT [1] In a decision dated February 27, 2007, I dismissed the Ontario Securities Commission’s motion for leave to appeal brought pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”). [2] Mr. Rankin seeks costs of the motion. He argues that this court has jurisdiction to make such an order and that it is appropriate to award costs as the Ontario Securities Commission sought leave on grounds that failed to respect the principles relating to the threshold test for leave and was an “attempt to advance a policy objective at the expense of an individual”. [3] As Mr. Rankin observed, a similar request was considered in R. v. Landry, [1996] O.J. No. 3007 ( C.A. ) and rejected. In Landry, Austin J.A. reviewed ss. 129, 131 and 134 of the POA and concluded that he was without authority to award costs on the dismissal of a motion for leave to appeal under s. 131 of the POA. For the reasons given by Austin J.A., I am of the same view: I do not have the jurisdiction to make the requested order. [4] However, even if there were jurisdiction to make such an award, I would decline to do so. In R. v. Felderhof (2003), 180 O.A.C. 288 (C.A.), Rosenberg J.A., writing on behalf of the court, considered the issue of costs in proceedings under the POA and stated “The rule in proceedings under the Act is that generally no costs are awarded either against the Crown or the defendant” (para. 100). In R. v. 1353837 Ontario Inc. (2005), 249 D.L.R. (4th) 720, this court affirmed the approach in Felderhof and held that costs should only be awarded when there are factors justifying a departure from the general rule against such awards. [5] Although both Felderhof and 1353837 Ontario Inc. concerned appeals under s. 142(5) of the POA rather than leave motions under s. 131, should there be jurisdiction to award costs on a leave motion, I see no principled reason to adopt a different approach. On that approach, I see nothing justifying a departure from the general rule – although the motion for leave was unsuccessful, there was nothing improper in the Commission bringing the motion. Disposition [6] Accordingly, the costs request is denied. “E. E. Gillese J.A.”