The Ordering of Costs Against the Crown

If there is a more prolific Canadian judge than Judge Wayne Gorman, I am not certain who that might be. The decision he writes regarding ordering costs against the Crown is no doubt of interest to Canadian judges, but it is also an issue….albeit rare…that United States judges might also think about or confront.

In R. v. Fercan Developments Inc., 2016 ONCA 269, April 14, 2016, a judge of the Ontario Court of Justice dismissed an application for forfeiture of property brought by the Crown pursuant to the provisions of the Controlled Drugs and Substances Act.  In addition, the application judge issued an order of costs against the Crown in the amount of almost one million dollars. 

The Appeal:

The Crown submitted that the application judge “(i) did not have the jurisdiction to award costs in this case; (ii) erred in his conclusion about the applicable test; (iii) erred in finding that the conduct of the Crown met the applicable test; and (iv) awarded an amount that was excessive.”

The Ontario Court of Appeal:

The Ontario Court of Appeal noted that although “they are rare, cost awards have a long and established history as a criminal law remedy…(i) where there has been a Charter violation; (ii) where there has been Crown misconduct; and (iii) where there are exceptional circumstances.”

The Court of Appeal concluded that “the application judge had the jurisdiction to award costs, identified the correct test, and did not commit any reviewable error. I would, therefore, dismiss the appeal.”

Did the application judge have the power to award costs against the Crown?

The Court of Appeal held that “a provincial court [judge] hearing a CDSA forfeiture application has an implied power to award costs in appropriate circumstances” for three reasons: (at paragraphs 50 to 55):

First, that power is derived from the authority, possessed by every court of law, to control its own process… A statutory court also has the power to control its own process. That power is necessarily implied in a legislative grant of power to function as a court of law.

Second, the breadth of a provincial court’s mandate under the CDSA suggests that it has an implied power to award costs.

Third, given the statutory context in which a provincial court hears forfeiture applications, this implied power is reasonably necessary for it to discharge its mandate in a fair and efficient manner.

Did the application judge apply the wrong test for determining when costs should be awarded against the Crown?

The application judge held that costs are appropriate where there has been a “marked and unacceptable departure from the reasonable standards expected of the prosecution.” The Court of Appeal concluded that “the application judge identified the correct standard: in the context of a forfeiture application under the CDSA, a court can award costs when there has been a marked and unacceptable departure from the reasonable standards expected of the prosecution” (at paragraph 71).


The Ontario Court of Appeal concluded that the application judge did not err in awarding costs or in the amount ordered (at paragraph 157):

…in the circumstances of this case, I cannot say that the costs awarded were excessive. The Crown forced three separate respondents to proceed through a lengthy forfeiture application and a number of related motions. As noted by the application judge, the forfeiture application was wholly and obviously meritless from the beginning. The properties at issue, which the Crown would have obtained if successful, were valuable. As such, the objectives of both deterrence and denunciation justify a high award in this case and, therefore, I cannot conclude that the application judge’s award was unnecessarily excessive.

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