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PROCEDURE - Trials - Costs

Monday, March 04, 2019 @ 9:19 AM  

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Appeal by defence counsel from an order to pay costs personally. Defence counsel failed to abide by timelines set out in a pre-trial conference memorandum. Another pre-trial conference was held, at which new deadlines were set and the Crown offered to respond to any motion brief within a shorter period to preserve scheduled hearing dates. The pre-trial judge raised, on his own motion, the prospect of costs personally against defence counsel. Counsel explained that he incorrectly inputted the pre-trial schedule into his calendar. The pre-trial judge found the explanation for the missed deadline unacceptable and ordered costs of $1,000, as against counsel personally. Counsel appealed.

HELD: Appeal allowed. The Court of Appeal had jurisdiction, as a party's right of appeal was sufficiently broad to include counsel for a party. The Criminal Proceedings Rules in respect of costs were part of the machinery of the Court to regulate practices and assist the Court with its case management responsibilities. The use of a costs award to regulate the duty of counsel to comply with court-ordered timelines to ensure trials occurred within a reasonable time was a procedural matter of law rather than substantive. The rule-making powers in ss. 482 and 482.1 of the Criminal Code were sufficiently broad to provide the Court with the procedural authority to make rules to award costs personally against counsel who failed, without reasonable excuse, to comply with valid court-ordered timelines. The plain meaning of Rule 2.03 provided for such an award. The framework for awarding costs against counsel personally under Rules 2.02 and 2.03 required a right to notice, a right to be heard, consideration of a reasonable excuse at the liability phase, and consideration of prior conduct or exceptional circumstances at the consequence phase. Here, the decision could not stand, as the pre-trial judge improperly considered facts at the liability phase relating to a prior pre-trial experience with counsel and failed to give him the opportunity to prepare adequately or to adduce evidence in response. The costs award was set aside.

R. v. Gowenlock, [2019] M.J. No. 14, Manitoba Court of Appeal, R.J.F. Chartier C.J.M., F.M. Steel and B.M. Hamilton JJ.A., January 29, 2019. Digest No. TLD-March42019001