Background
Fredrick Moore was found guilty of aggravated sexual assault on an agreed statement of facts. He sought a stay of proceedings for abuse of process, alleging problems involving a search warrant for his cellphone and police disclosure concerning the continuity of its possession.
The trial judge found no breach of solicitor-client privilege but set aside the warrant because omissions and incorrect information had subverted the preauthorization process. The judge also found that police disclosure failures forced defence counsel to make extraordinary efforts to obtain continuity records. Although the judge refused to stay the prosecution, the judge awarded Moore $50,000 in costs against the Crown. The Crown appealed that award and moved to stay its payment pending appeal.
The Court’s Holding
The Court of Appeal granted the stay. Applying the RJR-MacDonald framework, it found serious issues concerning whether the trial judge applied the proper standard for costs against the Crown and whether the Crown could properly be held responsible for the investigators’ alleged misconduct and disclosure failures. The court did not decide those appellate issues on their merits.
The court also found a risk of irreparable harm because Moore intended to use the money immediately to fund an appeal, making full recovery uncertain or costly if the Crown succeeded. The balance of convenience favoured preserving the funds because Moore offered only bare assertions that he otherwise could not finance his intended appeal.
Addressing uncertainty created by recent amendments to the Criminal Appeal Rules, the court further held that a single judge may stay a costs order made in a criminal proceeding when necessary to prevent frustration of an appeal. Rule 21(12)(e) does not expand the court’s jurisdiction or conflict with the Criminal Code; it allocates existing jurisdiction to a single judge.
Key Takeaways
- A single Ontario Court of Appeal judge may stay a criminal costs order under r. 21(12)(e) to prevent frustration of an appeal.
- The Crown raised serious, arguable questions about the governing threshold for costs and its responsibility for police conduct, but the merits remain undecided.
- Likely dissipation of an award, uncertain recovery, and significant collection expense can establish irreparable harm and favour a stay.
Why It Matters
The decision clarifies that recent changes to Ontario’s Criminal Appeal Rules did not require three-judge panels to hear motions staying criminal costs awards. A single judge may exercise that authority, conserving appellate resources while preserving the effectiveness of an appeal.
It also illustrates that an intended immediate use of awarded funds, coupled with uncertain or expensive recovery, may justify postponing payment until the appeal is resolved.