Court File and Parties

BRACEBRIDGE COURT FILE NO.: CR-15-11-00MO DATE: 20160418 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Oliver Karafa, Applicant AND: The Attorney General of Canada, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: J.T. Sloan, Counsel for the Applicant A. Laldin, Counsel for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The applicant, Oliver Karafa, brought an application for habeas corpus with certiorari in aid. For reasons released on January 14, 2016, the application was dismissed. Both parties were invited to make costs submissions, and those submissions have now been received.

[2] This matter initially came before Justice J. McIsaac on October 14, 2015. The matter was adjourned to a further date to be scheduled. As McIsaac J. noted in his endorsement, “It is my view that the applicant is advancing, in effect, a request to exclude evidence of his responses to institutional authorities on June 16, 2015 pursuant to s. 24 (2) of the Charter.”

[3] The essence of the applicant’s Charter issue was his right to retain and instruct counsel when he was called in for an administrative interview on June 16, 2015 while incarcerated at Beaver Creek Minimum. For written reasons issued on January 14, 2016, that aspect of the application was unsuccessful.

Costs Sought by the Successful Party

[4] As the successful party, the Attorney General of Canada (AGC) seeks costs of $5,000, all inclusive. The AGC submits that its actual costs, including fees and disbursements, were $18,562 on a full indemnity basis, or $6,505.25 plus disbursements and HST on a partial indemnity basis. The AGC’s disbursements as submitted are $4,209.85, the largest component of which is the cost of transcripts of telephone intercepts with respect to the applicant, at a cost of $2,988.50. The AGC submits that these transcripts were necessitated by virtue of Mr. Karafa’s application.

[5] As the AGC submits in its Costs Submissions at para. 4:

The AGC respectfully submits that this is an appropriate case for award of costs. The applicant engaged in conduct that led the AGC to incur unnecessary expenses in defending this application, and advanced arguments with little merit.

Position of the Applicant

[6] The applicant submits that there should be no costs, the applicant having raised important and legitimate issues requiring judicial determination. The applicant submits in the alternative, if costs are awarded they should be minimal.

Legal Analysis

[7] Both parties submitted that Wood v. Atlantic Institution (Warden), 2014 NBQB 135, [2014] NBJ No. 278, provides guidance to courts with respect to costs. In ordering costs in the amount of $750 at paras. 68-69, J.J. Walsh J. explained the tension that exists for costs considerations when courts consider the importance of access to justice through the writ of habeas corpus even if the application is unsuccessful:

[68] This is all to say that every litigant in society invoking the civil law and seeking redress before the courts is expected to assess the monetary risks should they be unsuccessful. I do not see why an inmate should not also be expected to engage in some introspective consideration of the relative merits of a potential claim, i.e. engage in a “risk-reward” assessment. Inmates too must shoulder some responsibility for their decisions in these regards.

[69] At the same time, costs cannot become a roadblock to accessing the writ of habeas corpus. After all, habeas corpus is the law’s oldest front line bastion of protection against “unlawful” loss of liberty; in modern times including the protection against “unlawful” reduction or restriction of residual liberty interests of inmates. Habeas corpus can be an efficacious remedy suited to respond to a multitude of situations. Money cannot be made to act as bar to its resort.

[8] The AGC submitted two cases from this region where the Superior Court of Justice awarded costs against an applicant inmate on habeas corpus applications.

[9] In R. v. Campbell, 2010 ONSC 5157, Justice DiTomaso awarded costs of $7,000, all inclusive, against an applicant who was unsuccessful in a habeas corpus application. In considering the applicable costs principles, Justice DiTomaso noted at para. 28:

I have considered factors identified in Rule 57.01 of the Rules of Civil Procedure. The application did involve a level of complexity which required an examination and consideration of federal legislation and regulations together with correctional administrative documentation. The application involved a review of detailed affidavit material submitted on behalf of both Mr. Campbell and the respondent. The issues involved in this application were important to the parties as it not only concerned the residual liberty interest of Mr. Campbell, but also concerned the orderly administration of penitentiaries.

[10] In Tyler v. Canada (Attorney General), 2015 ONSC 1359, M.E. Vallee J. fixed costs of $1,000 for the respondent, AGC, in circumstances where the AGC requested costs of $1,500. Justice Vallee relied on the principles in Wood, and noted at para. 71, “… Habeas corpus is a civil remedy. Generally, costs follow the cause.”

Conclusion

[11] This application required two attendances by the parties. The AGC incurred significant expenses in ordering the transcripts of the intercepts involving the applicant. Having considered the issues of proportionality, as well as the costs principles set out in Rule 57.01, I am satisfied that costs be fixed in the amount of $5,000, all inclusive, payable by the applicant, Oliver Karafa to the respondent, The Attorney General of Canada, within 30 days.

MULLIGAN J. Date: April 18, 2016