R. v. M.D.
The Court held that because defence counsel did not give appropriate notice and the Crown was not permitted to call evidence of how prosecutorial discretion was exercised, and because there was no evidence or findings establishing abuse of discretion, the trial judge lacked jurisdiction to award solicitor and client...
Source-derived case information.
- Citation
- 1998 NSCA 47
- Parties
- Appellant: M. D.; Respondent: Her Majesty the Queen in Right of the Province of Nova Scotia
- Court
- Nova Scotia Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 9 January 1998
- Procedural Posture
- Criminal Appeal (certiorari Application Below) / Court of Appeal Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Charter S.7, S.24(1) Remedy, Prosecutorial Discretion, Solicitor and Client Costs, Certiorari, Abuse of Discretion, Procedural Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M. D.
Appellant
Her Majesty the Queen in Right of the Province of Nova Scotia
Respondent
Procedural Posture
Criminal Appeal (certiorari Application Below) / Court of Appeal Judgment
Legal Issues
- 1 Whether a trial judge has jurisdiction to award solicitor and client costs against the Crown based on alleged abuse of prosecutorial discretion without appropriate notice and without evidence of abuse
- 2 Whether the Crown was denied a fair opportunity to call evidence regarding the exercise of prosecutorial discretion when defence sought a Charter remedy immediately after acquittal
- 3 Whether the appellate court should intervene and overturn the quashing of the costs order
Ratio Decidendi
The Court held that because defence counsel did not give appropriate notice and the Crown was not permitted to call evidence of how prosecutorial discretion was exercised, and because there was no evidence or findings establishing abuse of discretion, the trial judge lacked jurisdiction to award solicitor and client costs against the Crown; thus the quashing of that costs order was correct.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Order of Justice Hood quashing Provincial Court Judge Atton's order for solicitor and client costs against the Crown is upheld
Full Case Text
Judgment text and source record
1 paragraphs
R. v. M.D. Court Court of Appeal Date 1998-01-09 Citation 1998 NSCA 47 Docket CA 141637 Judge/Registrar/Adjudicator Hart, Gordon L.S. (Honourable Justice); Chipman, David (Honourable Justice); Flinn, Edward J. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. M.D. - 1998 NSCA 47 - 1998-01-09 - Library Sheet Decision Content Date: 19980109 Docket: C.A. 141637 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. M. D., 1998 NSCA 47 Chipman, Hart and Flinn, JJ.A. BETWEEN: M. D. ) William M. Leahey ) for the Appellant Appellant ) ) - and - ) ) William D. Delaney ) for the Respondent HER MAJESTY THE QUEEN IN RIGHT ) OF THE PROVINCE OF NOVA SCOTIA ) ) Respondent ) Appeal Heard: ) January 9, 1998 ) ) ) Judgment Delivered: ) January 9, 1998 ) ) ) ) ) ) ) ) Editorial Notice Identifying information has been removed from this electronic version of the judgment. THE COURT: Appeal dismissed per oral reasons for judgment of Flinn, J.A.; Hart and Chipman, JJ.A. concurring. FLINN, J.A.: (Orally) This is an appeal from the decision of Justice Hood of the Supreme Court of Nova Scotia on a certiorari application by the Crown. Justice Hood quashed an order of Provincial Court Judge Atton, requiring the Crown to pay solicitor and client costs to the appellant following the appellant=s acquittal on a charge of sexual assault. Judge Atton, immediately after rendering his decision of acquittal, agreed to hear, and granted, an application from defence counsel for relief under s. 24(1) of the Charter. The basis for the application was that the appellant=s s. 7 Charter rights had been violated because of the improper exercise of prosecutorial discretion. Justice Hood quashed the Order because defence counsel had not given the Crown appropriate notice that he intended to seek a Charter remedy, and, as a result, the Crown was not given the opportunity to call evidence with respect to the manner in which it exercised its prosecutorial discretion. In fact, Judge Atton did not permit the Crown to call such evidence, and his decision on the application was based on the evidence presented at the trial. Justice Hood further decided that, without evidence of the improper exercise of prosecutorial discretion, and without a finding by the trial judge of the essential ingredients of abuse of discretion, the decision of Judge Atton, awarding costs against the Crown, was without jurisdiction. Having reviewed the proceedings of both courts below, as well as the written submissions of counsel, and having heard counsel for both parties, we are of the unanimous opinion that Justice Hood made no reviewable error in quashing Judge Atton=s order as to costs. The appeal is, therefore, dismissed, without costs. Flinn, J.A. Concurred in: Hart, J.A. Chipman, J.A. C.A. No. 141637 NOVA SCOTIA COURT OF APPEAL BETWEEN: M. D. ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: HER MAJESTY THE QUEEN IN ) RIGHT OF THE PROVINCE OF ) FLINN, J.A. NOVA SCOTIA ) (Orally) ) Respondent ) ) ) ) ) ) )