Costs awarded personally against counsel are a rare occasion. At 41 pages, R. v. Gowenlock, 2019 MBCA 5 is a detailed analysis of when it is appropriate to do so, and the amount that should be awarded. This was a decision of first impression and had the benefit of two intervenors, the Attorney General for Manitoba and the Criminal Defence Lawyers Association of Manitoba, as well as amicus curiae.
This appeal offers this Court the opportunity to provide certainty, clarity and guidance for the development and application of principles and procedures in regard to the costs-awarding rules. It is worth re-emphasising that the discretion to exercise the power to award costs against counsel personally must be exercised with restraint and that this is especially so in the criminal context. Courts must ensure that any costs award against defence counsel does not in any way affect the accused’s right to make full answer and defence. Courts must also be aware that unjustified non-compliance with valid court-ordered timelines causes delays and that these delays prejudice the accused and undermine public confidence in the criminal justice system.
This week's decision is the first reported provincial court decision for 2019: R. v. Osnach, 2019 MBPC 1.
[1] ... The main issue to be addressed is whether the mandatory minimum one-year driving prohibition imposed under s. 259(1) of the Criminal Code may be reduced on account of time spent under a three-month provincial administrative suspension.
The issue of whether the three month administrative suspension could be included in the one year driving prohibition was likened to credit for time in custody. Choy, P.J. did not agree.
[17] I also do not accept the defence submission that the situation is analogous to credit for time in custody. In that regard, the case R. v. Wust, [2000] 1 S.C.R. 455 was relied upon by defence. I find that the leap from pre-sentence custody credit to credit for provincially mandated driving suspension cannot be made. Depriving a person of their liberty is not the same as a person being inconvenienced by the inability to operate a motor vehicle. Liberty is a fundamental individual right, whereas driving is a privilege which is earned.
The original appeal was not unanimous. R. v. Fedyck, 2018 MBCA 74 featured a significant dissent by Justice Beard. The evidence was circumstantial, and the issue on the appeal was whether the verdict was unreasonable or could not be supported by the evidence.
[24] The role of an appellate court, in reviewing a conviction based on circumstantial evidence, is to focus on “the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him” (Villaroman at para 67).
The first "Decision of the Week" concerns an argument that comes up from time to time:
[1] When is a human being a person? Shouldn’t a human being be able to escape a photo-radar ticket fine because The Highway Traffic Act C.C.S.M. c. H60 (“HTA”) does not apply to humans, but rather only to persons?
Mr. Penner, as agent for his wife, challenged a photo-radar speeding ticket. Martin, J. quashed the appeal orally with written reasons to follow.
[3] I write them not to convey any insightful legal analysis but to provide precedent for the many justices of the peace and provincial court judges who are increasingly facing these specious arguments, gussied up like legal briefs with all the accompanying bafflegab. Those judicial officers should feel confident that they can dismiss nonsensical submissions summarily. And those promoting these points of view should know that their arguments will get the time and attention they deserve, little to none.
The Alberta Court of Queen's Bench issued a lengthy decision on this issue in 2012, Meads v. Meads, 2012 ABQB 571. While nowhere near as lengthy, perhaps Justice Martin's decision can be as useful.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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