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HUNTING, FISHING AND LOGGING RIGHTS - Logging - Aboriginal lands - Non-aboriginal lands - Crown lands - Regulation of - Licences - Offences and penalties - Constitutional issues - Practice and procedure - Costs

Monday, March 20, 2017 @ 7:49 AM  

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Application by the Crown for leave to withdraw criminal charges against band members of the Batchewana First Nation under the Crown Forest Sustainability Act. In 2008, the defendants were charged with unlawfully harvesting forest resources in a Crown forest without the authority of a forest resource license. The first court appearance for the matters occurred in November 2008, and there were many subsequent court and procedural attendances and pre-trials. The defendants had prepared an expert report that Crown counsel received shortly after its production in May 2014. The defendants had pled not guilty to all charges in September 2015. A trial of the matter was set to commence in May 2016. On the eve of trial, Crown counsel indicated that it was the Crown’s intention not to proceed with the prosecution and that the Crown would seek leave to withdraw the outstanding charges. The defendants opposed the cessation of the proceedings on the basis that the prosecution had much greater significance to the litigants. It was hoped the proceedings would address issues of treaty and aboriginal rights. The Batchewana First Nation community had filed a Notice of Constitutional Question to determine their grievances relating to access to timber resources, land and treaty claims. The Batchewana First Nation had argued that, according to the terms of a treaty, they continued to have aboriginal title and rights to lands where the disputed logging occurred. The defendants had argued, among other things, that the use of the lands was protected by s. 35 of The Constitution Act, 1982. The issues before the Court were whether the Crown should have been granted leave to withdraw charges, and if the Crown was not granted leave, how the parties were to proceed, and whether the defendants were entitled to all or a portion of their legal costs paid by the Crown.

HELD: Application allowed. The Crown was ordered to pay costs. A judge did not have the authority to direct the Crown which crimes it should prosecute or when to prosecute them, nor to interfere with a prosecutor’s decision to stop a prosecution. The Crown may not be permitted to withdraw charges if their decision to withdraw was based on an oblique or inappropriate motive, but there was no evidence of an oblique or inappropriate motive in the present case. There was no evidentiary basis to conclude that the Crown’s request to stay the proceedings was based on a Crown attempt to circumvent any court ruling. The Crown demonstrated it was in the public interest that the outstanding charges should be withdrawn. The withdrawal of these charges was consistent with the UN Declaration of the Rights of Indigenous Peoples and with the calls to action as enunciated in the Summary of the Final Report of the Truth and Reconciliation Commission of Canada. The threat of criminal sanctions was to be replaced with negotiation by both the federal and provincial governments with Batchewana First Nation and other interested parties. In respect of the issue of costs, the court’s jurisdiction was limited. Costs awards in criminal proceedings were only appropriate where it could be shown that there was a marked and unacceptable departure from reasonable standards expected of the prosecution or “Crown misconduct or exceptional circumstances”. The Crown’s failure to withdraw or otherwise deal with the criminal charges once provided with a copy of the expert report in 2014 constituted exceptional circumstances justifying a costs award. It was not until the eve of trial that the Crown indicated it was not proceeding with the charges. The Crown should have reassessed its position, once it received the expert’s report, as to whether it should or should not have pursued the prosecution, and it did not do so within a reasonable period of time. There was a total delay of almost two years in seeking to withdraw the charges. This delay was “a marked and unacceptable departure from the reasonable standards expected of a prosecution”, which justified a costs award. The Crown knew from the beginning that significant aboriginal issues were in play and the consideration of costs was not temporally limited. The appropriate approach to ordering legal fees was one based on denunciation and deterrence, and indemnification. There was no basis in law to award punitive damages. The Crown was ordered to pay $90,000 in costs to one defendant and $300,000 to the three remaining defendants within 30 days of judgment.

R. v. Sayers, [2017] O.J. No. 935, Ontario Court of Justice, R.F. Kwolek J., February 13, 2017. Digest No. 3643-001