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Her Majesty the Queen v. Logan
[Indexed as: R. v. Logan]
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59 O.R. (3d) 575
[2002] O.J. No. 1817
Docket No. C35976
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Court of Appeal for Ontario,
Moldaver, Simmons and Armstrong JJ.A.
May 15, 2002
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Criminal law -- Costs -- Notes of eyewitness interview conducted by Crown Attorney not disclosed to defence until second week of manslaughter trial -- Trial judge finding that failure to disclose had prejudiced accused's ability to make full answer and defence -- Stay of proceedings and award of costs against Crown granted -- Crown appeal from costs award dismissed -- Failure to disclose constituting marked and unacceptable departure from reasonable standards expected of prosecution -- Award of costs appropriate.
Criminal law -- Disclosure -- Notes of eyewitness interview conducted by Crown Attorney not disclosed to defence until second week of manslaughter trial -- Trial judge finding that failure to disclose had prejudiced accused's ability to make full answer and defence -- Stay of proceedings and award of costs against Crown granted -- Crown appeal from costs award dismissed -- Failure to disclose constituting marked and unacceptable departure from reasonable standards expected of prosecution -- Award of costs appropriate.
Notes of an eyewitness interview conducted by a Crown Attorney were not disclosed to the defence until six months after the interview, after nearly two weeks of trial on a charge of manslaughter. The trial judge found that the failure to disclose had prejudiced the accused's ability to make full answer and defence and ordered a stay of proceedings. Costs of the stay application and of the motion for costs were awarded to the accused against the Crown. The Crown appealed the costs order.
Held, the appeal should be dismissed.
In the circumstances of this case, disclosure of the notes should have been automatic. The failure to disclose constituted a marked and unacceptable departure from the reasonable standards expected of the prosecution. The costs award was appropriate.
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Cases referred to
R. v. 974649 Ontario Inc., 2001 SCC 81, 206 D.L.R. (4th) 444, 2001 SCC 81, 279 N.R. 345, 88 C.R.R. (2d) 189, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316 (sub nom. Ontario v. 974649 Ontario Inc.)
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APPEAL by the Crown from an award of costs.
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Milan Rupic, for appellant.
Marie Henein, for respondent.
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[1] BY THE COURT (orally): -- We agree with the Crown's submission that costs are generally not awarded in criminal matters, either for or against the Crown. In addition, the Crown cites [page576] R. v. 974649 Ontario Inc. (2002), 2001 SCC 81, 2001 SCC 81, 159 C.C.C. (3d) 321 for the proposition that "the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution", and submits that the inadvertent non-disclosure present here does not meet that threshold.
[2] The circumstances leading to the award of costs are as follows. An assistant Crown Attorney was present at and took notes of an interview of an eyewitness conducted by the Crown Attorney who had carriage of the prosecution of a manslaughter retrial. The retrial was originally scheduled to commence on April 17, 2000, but it was adjourned in March 2000 until September 5, 2000. The interview took place on April 10, 2000. However, disclosure of the notes of the interview was not made until six months following the interview, after nearly two weeks of trial, and after virtually the entire Crown case was in. No explanation was advanced for the failure to disclose the notes of the eyewitness interview other than that the originally assigned Crown had been replaced, and that the assistant Crown overlooked the disclosure.
[3] The trial judge found that the notes of the eyewitness interview contained significant differences from an earlier statement taken from the eyewitness, and that the failure to disclose had prejudiced the accused's ability to make full answer and defence. The trial judge accordingly ordered the rare and exceptional remedy of a stay. That order was not appealed by the Crown.
[4] In these circumstances, disclosure of the notes of the eyewitness interview should have been automatic and, in our view, no adequate explanation has been provided for the omission. In all the circumstances, this omission and failure to disclose constituted "a marked and unacceptable departure from the reasonable standards expected of the prosecution".
[5] The trial judge, in the exercise of his discretion, granted what was, in our view, a measured remedy, namely, costs of the application for a stay and costs of the motion for costs. In the circumstances, we see no basis for interfering. The appeal from the award of costs is accordingly dismissed.
Appeal dismissed.
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