R. v. Brown, 2009 ONCA 633
CITATION: R. v. Brown, 2009 ONCA 633
DATE: 20090901
DOCKET: C47450
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Sharpe and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Applicant (Appellant)
and
Kirk Brown, Jason Burke, Howard Burke, Omar Burke, Kevin Davis, Andrew Persaud, Melvin Thomas, Kevin Whitfield and Rikardo Robinson
Respondents
Elise Nakelsky, for the appellant
Leslie Maunder and D. Rechtshaffen, for the respondents
Heard: May 27, 2009
On appeal from the order of Justice Ian V.B. Nordheimer of the Superior Court of Justice dated June 21, 2007.
Sharpe J.A.:
[1] The Crown appeals an order that it pay costs to the respondents, nine individuals arrested in what is described as a major gang takedown involving the arrest and detention of approximately one hundred persons. The Crown had made no arrangement to ensure that the arrested gang members would be brought before a judge within twenty-four hours of their arrest or to ensure that bail hearings would be heard within the time prescribed by law. More than twenty-four hours after the takedown, eighty-six detainees were brought before a single bail court. Predictably, the bail hearings were adjourned for weeks rather than the statutorily prescribed period of three days. The respondents applied for habeas corpus to secure their legal rights, and earlier dates were eventually arranged. The judge hearing the habeas corpus applications found that “what has occurred to date in this case is improper and it is unacceptable” and ordered the Crown to pay the respondents’ costs of the habeas corpus applications. For the following reasons, I would dismiss the Crown’s appeal.
FACTS
[2] On June 13, 2007, approximately 1200 officers from the Toronto Police Service conducted a major police takedown of the Driftwood Crips gang. Approximately 100 gang affiliates were arrested. The gang had allegedly been involved in trafficking firearms and drugs, as well as acts of extreme violence. The takedown followed a lengthy police investigation.
[3] On June 14, 2007, more than 80 arrested persons, including the respondents, were brought before the Metro West bail court for their first appearance. As the takedown had occurred early on the morning of June 13, the detainees had thus not been brought before a justice within 24 hours, as required by s. 503(1)(a) of the Criminal Code. No arrangements had been made by the police or by the Crown before the takedown to ensure that there would be adequate time and resources in the bail court to accommodate such an unusually large number of accused in a single day. The Crown was granted an adjournment on all matters to review the files, and a hearing was held on June 18 to set dates for the bail hearings. Some of the bail hearings were set for the earliest available dates in June and July, well beyond the three-day adjournment permitted by s. 516(1) of the Criminal Code. One of the respondents received a hearing date of June 20, while the others all received dates between the days of July 4 and July 12, which were 21 to 29 days after the arrest.
[4] On June 15, eight of the respondents and three other detainees, all represented by the same counsel, brought applications for habeas corpus to secure either their immediate release or earlier dates for their bail hearings. The habeas corpus applications were returnable on June 19. The ninth respondent, represented by another counsel, filed an identical application for habeas corpus, also returnable June 19.
[5] On June 19, the habeas corpus applications were adjourned at the request of the Crown. At the urging of the judge dealing with the matter, the Crown arranged for earlier dates for the bail hearings. Several bail hearings were scheduled for the next day, although the nine respondents received dates ranging from June 22 to June 29. These arrangements required the opening of a weekend bail court.
REASONS OF THE APPLICATION JUDGE
[6] The habeas corpus applications were heard and decided on June 21.
[7] The application judge found that the respondents’ rights under s. 503(1)(a) to be brought before a court no later that 24 hours after their arrest had been violated: “…the accused should have been brought before the court on June 13. No defensible reason is given for why that did not occur. The sheer number of persons arrested does not provide a justification for failure to abide by the requirements of the Criminal Code.”
[8] The application judge found that the more serious breach of the respondents’ rights was the violation of s. 516(1) of the Criminal Code, which stipulates that a person is not be remanded in custody for a period of more than three days pending a bail hearing, unless that person consents to a longer period. The application judge noted that both the letter and the spirit of ss. 503(1)(a) and 516(1) were to ensure that any person who is arrested has an early opportunity to have a judge review the detention and determine whether its continuation is warranted. The application judge described these rights as “among the most important provisions in the Criminal Code”, observed that they protect the detainee’s right to liberty, and noted that they are fortified by both ss. 10(c) and 11(e) of the Charter, which guarantee the right to habeas corpus and the right not to be denied reasonable bail without just cause, respectively. As noted above, the application judge found that “what has occurred to date in this case is improper and it is unacceptable.”
[9] The application judge rejected the Crown’s submission that the failure to comply with ss. 503(1)(a) and 516(1) could be explained on the basis that those provisions were not designed to handle large scale investigations involving a major takedown of this kind. He observed that if that is the case, the Criminal Code should be amended, just as it had been amended to create the criminal organization offences: “[u]ntil that happens, however, the requirements of those sections must be respected.” The application judge added that, given the widespread media coverage that often accompanied police operations of this kind, it was “especially important that the judicial system be seen as dealing fairly and impartially” with such matters. He observed that this was a carefully planned operation many months in the making:
There is simply no excuse for the court system not to be ready to properly process these people and in a manner that ensures that their fundamental rights are respected. All that is required is a reasonable amount of attention and planning, along with a degree of advance notice.
[10] The application judge rejected the Crown’s contention that the failure to plan for the inevitable influx of a large number of arrested persons could be excused because of security concerns arising from any disclosure that a large-scale arrest was expected. There was no evidence on that point and, as a practical matter, sufficient court resources could be arranged without compromising police operations. In any event, “if there are security issues within the court system, then those issues should be addressed directly. Such concerns cannot be used as an excuse for treading on the constitutional rights of accused persons.”
[11] To the extent that the problem arose due to a lack of resources, the application judge held that that “cannot be relied upon as a reason not to respect constitutional rights.” If a decision is made to apply resources to the “front end” of the criminal justice process, which involves the investigation of crimes and the arrest of suspected individuals, “they must equally be applied to the back end of that process, otherwise the system will not function properly.”
[12] The application judge concluded as follows:
I am satisfied there has been a failure to respect the rights of these applicants through the failure of the Crown to ensure that they were able to have a bail hearing at the first opportunity that the accused were prepared to conduct such a hearing. Those rights include the right to liberty under s. 7 of the Charter, the right against arbitrary detention under s. 9 of the Charter, and the right to bail under s. 11(e) of the Charter.
[13] The application judge found that the remedy of ordering the respondents’ immediate release was not appropriate. However, he did make an order requiring the Crown to ensure that the bail hearings were held on the earliest available date. He also made the order which is at issue on this appeal, finding that the remedy of costs against the Crown was appropriate in the circumstances. He found that the habeas corpus applications should not have been required, and that the situation that had ensued and the violation of the rights of the respondents, was entirely predictable:
The Crown has had ample opportunity to develop a procedure to deal with the consequences of such investigations, and, more specifically, to ensure that the necessary courtrooms and judicial officers are available when needed.
Such a procedure was not properly in place for this project. Whatever the reason for that failure, it cannot be blamed on a new or novel situation. The seriousness of that failure for these accused cannot be understated. It is also apparent that but for these applications, the bail hearings for these accused would have been even further delayed than they already are.
[14] The application judge accordingly ordered costs pursuant to s. 24(1) of the Charter, initially set at $3000 to each applicant. This was subsequently varied after further submissions to $2000 per applicant for a total of $18,000.
ISSUES
[15] The Crown seeks leave to appeal, pursuant to s. 676.1 of the Criminal Code, and raises two issues:
Did the application judge err by ordering the Crown to pay costs?
Did the application judge err in the amount of costs he awarded?
ANALYSIS
1. Did the application judge err by ordering the Crown to pay costs?
[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 CanLII 230 (SCC), [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 SCC 81, [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), 2006 CanLII 29633 (ON CA), 81 O.R. (3d) 561 (“Ciarniello”), at paras. 32-33; Canada (Attorney General) v. Foster (2006), 2006 CanLII 38732 (ON CA), 215 C.C.C. (3d) 59, at paras. 62-69; and R. v. Tiffin (2008), 2008 ONCA 306, 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), 1999 ABCA 367, 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 CanLII 52161 (ON CA), [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.
2. Did the application judge err in the amount of costs he awarded?
[28] I do not agree that the amount eventually fixed by the application judge for costs in the amount of $2,000 per applicant was unreasonable. While there was obvious duplication in much of the work involved, counsel were required on very short notice to prepare, serve and file nine applications and to prepare for and attend three separate hearings.
CONCLUSION
[29] Accordingly, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree D. O’Connor A.C.J.O.”
“I agree David Watt J.A.”
RELEASED: September 1, 2009