COURT OF APPEAL FOR ONTARIO
WINKLER C.J.O., SHARPE and JURIANSZ JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
RAMON NICODEMUS MUNOZ
Applicant/Appellant
Edward L. Greenspan, Q.C. and Michael Lacy for the appellant
John McInnes for the respondent
HEARD: February 11, 2008
On appeal from the judgment of Justice Kenneth A. Langdon of the Superior Court of Justice dated October 25, 2005, allowing a summary conviction appeal from the order for costs made by Justice Marvin G. Morten of the Ontario Court of Justice dated October 12, 2004.
1The trial judge awarded the appellant costs for a summary conviction prosecution for sexual assault and common assault, which was stayed on the eve of trial. The Crown successfully appealed the costs award. The appellant seeks leave to appeal from the order of the summary conviction appeal judge, and asks us to set aside the order and reinstate the trial judge’s costs award.
2It is common ground that the costs award can only be upheld if the stay that terminated the prosecution was a judicial stay pursuant to s. 24(1) of the Charter. In our view, the summary conviction appeal judge erred by characterizing the stay as a Crown stay pursuant to s. 579 of the Criminal Code. The trial Crown made no reference to that provision. She did not direct that a stay be entered pursuant to s. 579, but rather asked the court to enter a stay and, in response, the trial judge explicitly stated that he was entering a judicial stay of proceedings. The Crown did not object to the judicial stay nor did it raise the point on the application for costs or in its notice of appeal. Given this record, we do not think it is possible to characterize the stay as other than a judicial stay pursuant to s. 24(1). We conclude, accordingly, that the trial judge had jurisdiction to award costs.
3The trial judge and the summary conviction appeal judge both expressed, albeit for very different reasons, their frustration with the manner in which this case proceeded through the system. The trial judge found that the delay and disclosure problems that led to the stay flowed from the Crown office’s dysfunctional organization, which resulted in the file being passed between different Crowns and no one individual assuming responsibility for the orderly investigation and prosecution of the case. The summary conviction appeal judge essentially retried the matter and fundamentally disagreed with the trial judge’s key factual findings. The appeal judge perceived the excessive demands made by defence counsel to be the true cause of the delay and disclosure problems.
4It is, of course, well established that a trial judge’s findings are entitled to deference on appeal. In our view, the summary conviction appeal judge failed to pay appropriate heed to that important principle. While, in the end, there may be some truth to the positions of both the trial judge and the summary conviction appeal judge, for the purposes of resolving this appeal, we do not find it necessary to engage in a detailed review of the conflicting findings of fact, as we are satisfied that even on the trial judge’s findings, the costs award cannot be sustained. However, in fairness to the trial defence counsel, who were sharply rebuked by the summary conviction appeal judge, we observe that it was their persistent demands that the police investigate further that revealed the inadequacy of the case against the appellant and that led to the stay of prosecution.
5We agree with the Crown’s submission that to support a costs award under s. 24(1), the misconduct that justifies the award must relate to the Charter breach. As we read the trial judge’s reasons, there were three factors that motivated his costs award: problems with disclosure, inadequate police investigation, and delay in bringing the matter to trial.
6We see no basis on this record for a costs award to sanction inadequate disclosure. This was not a case where the Crown proceeded to trial without having made proper disclosure. By the time the trial judge stayed the proceedings, the Crown had provided full disclosure. The problem, if any, was the time it took to achieve full disclosure and that concern is subsumed by the issue of delay.
7The trial judge placed considerable weight on what he regarded as the inadequacy of the police investigation. While that allegation, if made out, might support a claim for damages based upon negligent investigation, it does not give rise to a Charter breach and does not accordingly support an s. 24(1) remedy.
8This leaves delay as the only factor potentially capable of supporting a Charter breach and a resultant costs award. While the delay here – sixteen months – was sufficient to trigger an inquiry under s. 11(b), it was not so egregious as to provide a basis for costs, absent Crown misconduct or some other exceptional circumstance.
9In R. v. 974649 Ontario Inc. (2001), 2001 SCC 81, 159 C.C.C. 321 (3d) at para. 87, the Supreme Court of Canada held that costs may be awarded for a Charter breach, but only where there has been “a marked and unacceptable departure from the reasonable standards expected of the prosecution.” In our view, the trial judge’s findings fall short of bringing this case within that principle.
10The trial judge expressly found that there was nothing amounting to high-handed, cavalier, or oppressive conduct on the part of the Crown lawyers involved in this case. Rather, he found that “the cumulative effect of their miscommunication”, flowing from what he regarded as dysfunctional organization in the Crown office during the pre-trial proceedings and the discharge of the Crown’s disclosure obligations, “resulted in an inadvertent error”. This error put the appellant in the unenviable position of facing serious charges for sixteen months, only to see the case against him collapse on the eve of trial because of “non-disclosure, unreasonable delay and less than pro-active police investigation.” The trial judge attributed these failings to “an over-worked and badly administered pre-trial and disclosure process”.
11We agree with the trial judge that our criminal justice system can neither be proud of nor satisfied with a process that allows an accused person to face serious but unfounded criminal charges for almost a year and a half that were ultimately not proceeded with. However, costs awards in the criminal justice system are very much the exception rather than the rule and we cannot say that the nature of the Charter breach or the conduct of the Crown in this case reaches the standard mandated by the Supreme Court of Canada for a costs award.
12Accordingly, leave to appeal is granted, but the appeal is dismissed.
“W.K. Winkler C.J.O.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”