Costs against the Crown in public interest matters

Friday’s Court of Appeal decision in R. v.  Ontario (Review Board), 2009 ONCA 16  dealt with a cost award against the Ontario Review Board and held such an award was, on the facts presented, inappropriate.  In so doing the Court made an observation perhaps more widely relevant relating to costs where a prosecutor acts in the public interest – put simply, absent egregious misconduct, costs will not be awarded against a prosecutor.

 

The Court held:

 

[51]          After noting that “[r]outine costs awards are a feature of civil, not criminal proceedings”, Sharpe J.A. explained the rationale for the principles involved in making costs orders against the Crown at para. 33:

Different considerations apply to criminal proceedings. Criminal proceedings are brought in the public interest, not by one party to vindicate his or her private interests as against another. As Devlin L.J. explained in Berry v. British Transport Commission, [1962] 1 Q.B. 306, [1961] 3 All E.R. 65 ( C.A. ), at p. 327 Q.B.: "A plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs. A prosecutor brings proceedings in the public interest, and so should be treated more tenderly." Costs are not usually deployed in criminal law to influence the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to the accused to defend the case. As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award… [Emphasis added.]

[52]          Given the crucial role of the ORB in protecting the public from significant threats to its safety and also in protecting and preserving the dignity and liberty interests of NCR accused, I view it as being equally important that, in the absence of egregious misconduct constituting a marked departure and unacceptable departure from the reasonable standards expected of a review board, the discretion of the ORB “should not be influenced or fettered” by the threat of a costs order.