Costs in criminal law

Today's decision in R. v. Brown, 2009 ONCA 633 gives a helpful summary of when (rarely!) costs are available in a criminal case:

[16]         The traditional rule is that an accused person in a criminal case, whether successful or unsuccessful, ordinarily is not entitled to costs: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 97.  It is only where the accused can show at a minimum "a marked and unacceptable departure from the reasonable standards expected of the prosecution" that a costs order will be made: R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 ("974649"), at para. 87.

[17]         It has been recognized in many cases that while costs awards in favour of the winning party are a familiar feature of civil proceedings, they are rare in criminal cases: see recent decisions by this court in R. v. Ciarniello (2006), 81 O.R. (3d) 561 ("Ciarniello"), at paras. 32-33; Canada (Attorney General) v. Foster (2006), 215 C.C.C. (3d) 59, at paras. 62-69; and R. v. Tiffin (2008), 90 O.R. (3d) 575, at paras. 94-98.  This difference derives from the different purposes of civil and criminal proceedings.  Civil cases are concerned with compensation and the efficient resolution of disputes.  Costs awards compensate the successful litigant, at least partially, for the expense of litigation.  Costs awards also serve as an important judicial tool to control proceedings, discourage unreasonable or inappropriate behaviour, and encourage out of court settlements.  The threat of adverse costs awards discourages unnecessary or frivolous litigation and encourages parties to settle their disputes.

[18]         Criminal proceedings are not brought by one party to vindicate a private interest but in the interest of the public at large: see Berry v. British Transport Commission, [1962] 1 Q.B. 306 (Eng. C.A.), at p. 327: "[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."  There is a concern that if costs awards were routine, the discretion of the Crown when acting in the public interest would be unduly influenced or fettered: see R. v. Robinson (1999), 142 C.C.C. (3d) 303 (Alta. C.A.), at para. 29:

The reasons for limiting costs are that the Crown is not an ordinary litigant, does not win or lose criminal cases, and conducts prosecutions and makes decisions respecting prosecutions in the public interest. In the absence of proof of misconduct, an award of costs against the Crown would be a harsh penalty for a Crown officer carrying out such public duties.

[19]         Here the respondents seek costs as a remedy for the breach of their Charter rights pursuant to s. 24(1), and submit that costs are "appropriate and just in the circumstances" within the meaning of that section.  In Ciarniello, we summarized the jurisprudence relating to costs as a Charter remedy at paras. 35-6:

The traditional aversion to costs in criminal cases is a product of the pre-Charter era.  Because of their constitutional status, Charter rights have a higher claim to judicial protection than non-Charter rights and s. 24(1) entitles the victim of a Charter breach to an appropriate remedy...

On the other hand, the authorities are clear that this does not mean that costs will be routinely ordered in favour of accused persons who establish Charter violations. Galligan J.A. cautioned in R. v. Pawlowski that costs awards in favour of an accused will be "rare".  As a general rule, when claimed by an accused, absent Crown misconduct, costs will not be an "appropriate and just" Charter remedy: see R. v. 974649 Ontario Inc., supra, at para. 87; R. v. Leduc, [2003] O.J. No. 2974, 176 C.C.C. (3d) 321 (C.A.), at para. 161; R. v. Robinson, supra.  In R. v. Hallstone Products Ltd., [2000] O.J. No. 1051 (S.C.J.), at para. 33, LaForme J. suggested that the expanded jurisdiction to award costs against the Crown as a s. 24(1) remedy for a Charter breach in cases not involving Crown misconduct requires something that is "rare" or "unique" that "must at least result in something akin to an extreme hardship on the defendant." [Emphasis added.]

[20]         As the Supreme Court observed in 974649, at paras. 80-81, "[i]n recent years, costs awards have attained more prominence as an effective remedy in criminal cases" for breaches of the Charter, especially in relation to disclosure obligations.  Costs awards "are integrally connected to the court's control of its trial process" and, in disclosure cases, may allow the court to avoid the extremes of either a stay of proceedings or a mere adjournment.  Costs may be "the only effective remedy to control [the court's] process and recognize the harm incurred, even in cases involving unjustified and flagrant disregard for the accused's rights" and such awards are "a quintessential example" of the development of appropriate remedies "essential to the meaningful enforcement of Charter rights through the s. 24 guarantee".

[21]         I do not accept the appellant's central submission before us that the application judge failed to make the findings required to bring the Crown's conduct within the category of "a marked and unacceptable departure from the reasonable standards expected of the prosecution".  In my view, the findings by the application judge bring this case within that standard as it applies to cases involving the violation of Charter rights, as been in the authorities that I have discussed above.  The application judge rested his decision to award costs on the basis of a systemic failure on the part of the prosecution to respect both the statutory and Charter rights of the respondents.  Those findings were fully supported by the record.  He aptly described the conduct of the Crown and the situation it produced as "improper and unacceptable."  The cause of that improper and unacceptable situation was the failure of the Crown to make the necessary arrangements to have sufficient court resources available to deal with the known fact that there would be a massive intake of detained persons.

[22]         As the application judge observed, the arrest of the respondents was part of an operation that involved careful and detailed planning.  The central element of that careful and detailed plan was the sudden and sweeping arrest of a large number of suspects.  The execution of such a plan was bound to overwhelm the ordinary capacity of the bail court to handle those arrested in a timely fashion.  Regrettably, however, the otherwise careful and detailed plan entirely ignored the obvious fact that unless something was done to ensure that adequate court resources would be available on the morning of the sweeping arrests, chaos and the denial of the statutory and Charter rights of those arrested was inevitable.

[23]         The respondents should not have been required to bring habeas corpus applications to secure their statutory and Charter rights.  The situation that produced their need to resort to this remedy was entirely predictable.  It could and should have been avoided.

[24]         The application judge was quite rightly alarmed by what had occurred.  His response to the situation was measured and very much in the spirit of the rationale for costs awards in criminal matters identified in 974649 as an appropriate remedy to avoid extremes.  He denied the remedy of release and did what he could to have the bail hearings expedited.  However, he had identified a systemic failure in the processing of the respondents post-arrest which resulted in a serious violation of their rights, and he was entitled to mark his disapproval of what had occurred by ordering the Crown the pay the costs of proceedings that should never have been required.  While the appropriate remedy in most cases involving delayed bail hearings will be to direct or conduct an expedited hearing, the application judge found this to be an exceptional case calling for an exceptional remedy.

[25]         In argument before us, the Crown laid great emphasis on the fact that this was a prosecution that involved serious charges against dangerous individuals.  That, however, cannot justify any departure from the rights secured by the Criminal Code and the by the Charter.  Quite apart from the need to respect the rights of those eventually found to be guilty, sweeps of this kind will often bring before the court bystanders who were simply in the wrong place at the wrong time.

[26]         I would add that I have no doubt that, as was submitted on this appeal, the unfortunate Crown attorney who found himself in the bail court on the day the predictable storm hit did his best to cope with an impossible situation.  Likewise, the Crown attorney faced with the habeas corpus applications made commendable efforts to arrange earlier dates for the bail hearings, albeit dates outside the statutorily prescribed period.  However, it is not the conduct of those Crown attorneys that formed the basis for the costs order.  The submission made before us that that no costs should be awarded because the Crown attorneys in bail court and at the hearing of the habeas corpus applications made best efforts to deal with a bad situation simply misses the point of both the application judge's findings and the rationale for his award of costs.  While it may not be possible to lay responsibility for the violation of constitutional rights at the feet of any particular prosecutor, that does not preclude a costs award to sanction the failure of the Crown to take any steps to avoid the entirely predictable violation of the statutory and Charter rights of the respondents that occurred in this case.

[27]         Costs in criminal cases have always been and still remain an exceptional remedy to be awarded only in "rare" cases.  I am not persuaded that the trial judge erred in finding that the most unusual circumstances of this case brought it within the exceptional category calling for an award of costs.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
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