Costs against the Crown

R. v. Munkonda, 2015 ONCA 309:

[140]    Historically, it was very rare for court costs to be awarded against the Crown in criminal cases, and such awards were used to call attention to bad faith on the part of the Crown or intentional misconduct by the prosecution (R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 97). As explained in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, the Supreme Court made that approach more flexible if costs are awarded as a remedy under s. 24(1) of the Charter. There, the Supreme Court held that the courts may require that the Crown reimburse the accused for costs incurred as a constitutional remedy if they find "marked and unacceptable departure from the reasonable standards [of conduct] expected of the prosecution" (974649 Ontario, at para. 87). The Supreme Court stated: "In recent years, costs awards have attained more prominence as an effective remedy in criminal cases" (974649 Ontario, at para. 81).

[141]    The Supreme Court considers that awarding costs can often constitute the most appropriate remedy to sanction the prosecution's marked and unacceptable departures from reasonable standards that do not rise to the threshold required for a stay of proceedings but that are nonetheless very serious (974649 Ontario, at para. 80). The fact that the accused must be tried a second time because of a Charter violation is a factor that operates in favour of awarding costs or even awarding damages (974649 Ontario, at paras. 99‑100).

[142]    Apart from Charter violations, cost awards in a criminal case remain rare. Costs are typically awarded as a consequence of acts of bad faith on the part of the Crown. However, the categories of circumstances in which costs may be awarded in a criminal context are never closed (R. v. King (1986), 26 C.C.C. (3d) 349 (B.C.C.A.)). The Supreme Court has confirmed that in "remarkable" (R. v. Trask, [1987] 2 S.C.R. 304, at p. 308) or "unique" circumstances (R. v. Curragh Inc., [1997] 1 S.C.R. 537, at p. 546), a court may award costs even in the absence of bad faith on the part of the Crown. 

[143]    Doherty J.A. of this court, in an appeal relating to a summary conviction case, summarized the cases concerning awards of costs as follows:

The cases in which costs have been awarded against the Crown in summary conviction appeal proceedings fall into two broad categories. The first, and by far the largest, category consists of cases where the conduct of the prosecution is said to merit sanction in the form of an award of costs against the Crown. The second category consists of cases where there is no Crown misconduct, but other exceptional circumstances exist such that fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation (R. v. Garcia (2005), 194 C.C.C. (3d) 361, at para. 13 [Emphasis added]).

[144]    This court has confirmed that what was said in Garcia applies equally to prosecutions under the Criminal Code: R. v. B.(D.) (2006), 79 O.R. (3d) 698, at para. 96; Canada (Attorney General) v. Foster (2006), 215 C.C.C. (3d) 59, at para. 63; R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575, at para. 94.

[145]    It is worth noting that in Curragh Inc., the Supreme Court of Canada awarded costs to two accused without finding a Charter violation. In that case, the conduct of the trial judge was such as to raise a reasonable apprehension of bias against the prosecution, but the trial judge refused to recuse himself from the case. The court held that the accused should not suffer the grievous financial burden that arose from systemic problems that were beyond their control and to which they had in no way contributed. 

[146]    I am therefore of the opinion that in spite of the fact that there was no violation of the accused's Charter rights, we can award him his costs for the preliminary inquiry. In this case, the facts are indeed exceptional in many respects. The prosecution failed in several ways to respect the appellant's language rights. Additionally, the treatment it afforded to the accused who exercised their right to have their preliminary inquiry held in English was distinctly superior to the treatment it afforded to the accused who chose French. The prosecution not only respected the language rights of the anglophones, it went beyond its obligations to them. As I noted earlier, an observer with knowledge of the facts would have been left in no doubt that the accused who chose to proceed in French were put at a disadvantage. As in Curragh Inc., this disadvantage arose from systemic failures; the appellant, having objected in a timely manner, cannot be faulted for what transpired.

[147]    In this case, much like in Curragh Inc., the preliminary inquiry judge also bears a large share of the responsibility for the failure to respect the appellant's rights, and hence for the need for a new preliminary inquiry. He did not ensure that the appellant's language rights were respected, citing reasons of convenience and a lack of resources. In addition, when giving his decision to commit for trial, rather than thank counsel for the appellant for his efforts to ensure that the appellant's language rights were respected, he added a comment to the effect that counsel for the appellant should be proud of him for giving his decision in French, reflecting a failure by the trial judge to view the accused's language rights with the appropriate seriousness. I note that at the time he gave his decision, it affected only the two francophones, since the anglophones had all pleaded guilty or consented to their committal for trial. There was no reason to give judgment in English.

[148]    In my opinion, the certiorari judge was right to find several violations of the accused's language rights but erred by failing to award any remedy. The appellant correctly argued that, standing alone, an order quashing the committal for trial would not constitute an appropriate remedy since it would simply lead to a new preliminary inquiry. That kind of "remedy" would place a heavy financial and psychological burden on the accused (see R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 128). If the appellant were not awarded his costs, quashing the committal for trial would, for the reasons I have stated, be an inadequate remedy. 

[149]    Accordingly, in this case, unless the appellant is granted an order quashing the committal for trial and an order that the Crown pay the appellant's costs, there is no order other than a stay of proceedings that would constitute an appropriate response to the violations identified. Given that, as was the case in Curragh Inc., the additional delays and costs incurred by the appellant arise solely from systemic problems and the conduct of the judge and the prosecution, the appellant, who is in no way responsible, should be awarded costs. I note that in Curragh Inc., the Supreme Court of Canada awarded not only the costs already incurred by the accused, but also the costs to be incurred for the new trial. However, I see no need to go that far in this case. 

[150]    Before concluding, I would reiterate that this is an exceptional remedy. I do not believe it would be appropriate if the violations were minor or had been corrected quickly. Bilingual proceedings are demanding and the standard should not be perfection: see e.g. R. v. Wilcox, 2014 QCCA 321, 381 D.L.R. (4th) 383, at paras. 110‑12, aff'd on other grounds, 2014 SCC 75, [2014] 3 S.C.R. 616.