Her Majesty the Queen v. Singh et al.

[Indexed as: R. v. Singh]

Ontario Reports

Court of Appeal for Ontario,

Gillese, Watt and Pardu JJ.A.

February 8, 2016

129 O.R. (3d) 241 | 2016 ONCA 108

Case Summary

Charter of Rights and Freedoms — Remedies — Costs — Trial judge finding that Crown violated s. 7 of Charter by inadvertently failing to make timely disclosure of important inculpatory evidence — Trial judge finding that failure was due to unacceptable negligence but that there was no deliberate misconduct on part of Crown — Trial judge declaring mistrial and ordering Crown to pay costs of accused quantified on civil costs scale — Crown's appeal allowed — Trial judge erring in awarding costs in absence of flagrant or marked departure from norm and in circumstances where accused did not pursue disclosure diligently and did not suffer extreme hardship — Trial judge erring in importing civil costs regime into criminal law context — Canadian Charter of Rights and Freedoms, s. 7.

The respondents were charged with kidnapping, extortion and assault. About a month into their trial, the Crown realized that it had not disclosed important inculpatory evidence consisting of phone records relating to four phones. The Crown told defence counsel phone records would be disclosed but did not do so. The original Crown on the file had to be replaced due to a scheduling conflict and defence counsel did not follow up when the records were not disclosed. About a month before the trial, the second Crown realized that the records had not been disclosed and disclosed them. The trial judge found that the Crown had violated s. 7 of the Canadian Charter of Rights and Freedoms, that the failure to make timely disclosure was due to unacceptable negligence, but that there was no deliberate misconduct on the part of the Crown. He declared a mistrial and ordered the Crown to pay $580,087 in costs to the respondents, quantified on the basis of the civil costs regime under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He found that a legally aided accused should be able to claim costs at the usual rate of his counsel and was not restricted to legal aid rates. The Crown appealed the costs orders.

Held, the appeal should be allowed.

The appropriate standard to apply when determining if costs should be awarded against the Crown is whether it is "appropriate and just in the circumstances". When costs are sought as the result of the breach of the Crown's disclosure obligation, the test is whether the disclosure breach is the result of "a marked and unacceptable departure from the reasonable standards expected of the prosecution". This standard requires more than a showing of "mere" negligence, requiring a demonstration near the high end of the spectrum of blameworthiness.

The trial judge erred in awarding costs against the Crown given his conclusion that the breach in the Crown's disclosure obligations was the result of inadvertent behavior flowing from staffing problems. The conduct may have been negligent, but it did not rise to the level of a flagrant or marked departure of what is expected of the prosecution. Moreover, he failed to take defence inaction into account. The Crown had advised defence counsel of its intention to disclose the material, and defence counsel had failed to follow up and pursue disclosure diligently. Finally, the trial judge erred in awarding costs on the ground of extreme [page242] hardship to the respondents. There was no evidence of extreme hardship, or that the respondents were unable to defend themselves. The fact that the respondents had incurred costs which might have been avoided was, without more, an ordinary and expected outcome of a mistrial.

Even if a costs award was appropriate, the trial judge erred in importing the civil costs regime into the criminal law context. The purposes of ordering costs are different in those two regimes. In the criminal context, costs are designed to repay reasonable costs associated with securing a person's Charter rights; in the civil regime, one litigant, usually the losing party, is made to pay the costs of another litigant. It is also relevant that a cost order against the Crown will come out of the public purse. Moreover, in the context of tabulating an appropriate costs award, neither the fact that an accused is legally aided nor the accused's fee arrangement with legal aid is privileged. Even assuming that privilege applies to the details of a fee arrangement in this context, it can be rebutted by evidence showing either that there is no reasonable possibility that disclosure of the requested information will lead to the exposure of solicitor-client communications, or that the requested information is not linked to the merits of the case and its disclosure does not prejudice the client. The fact that one or two of the respondents was legally aided was relevant when determining if either suffered financial hardship, and if either was deprived of the ability to defend himself because of financial hardship. It was also relevant to the quantum of costs.

R. v. Figueroa (2003), 2003 42300 (ON CA), 64 O.R. (3d) 321, [2003] O.J. No. 1783, 171 O.A.C. 139, 176 C.C.C. (3d) 63, 57 W.C.B. (2d) 432 (C.A.); R. v. Logan (2002), 2002 44927 (ON CA), 59 O.R. (3d) 575, [2002] O.J. No. 1817, 159 O.A.C. 165, 54 W.C.B. (2d) 144 (C.A.), consd

Maranda v. Richer, [2003] 3 S.C.R. 193, [2003] S.C.J. No. 69, 2003 SCC 67, 232 D.L.R. (4th) 14, 311 N.R. 357, J.E. 2003-2138, 178 C.C.C. (3d) 321, 15 C.R. (6th) 1, 113 C.R.R. (2d) 76, REJB 2003-49826, 59 W.C.B. (2d) 553, distd

Other cases referred to

1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757, [2006] O.J. No. 4248, 275 D.L.R. (4th) 321, 216 O.A.C. 339, 38 C.P.C. (6th) 1, 152 A.C.W.S. (3d) 159 (C.A.); Abdiwahab v. Mohamuud, [2013] O.J. No. 4482, 2013 ONSC 6194 (S.C.J.); Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634, 188 O.A.C. 201, 48 C.P.C. (5th) 56, 132 A.C.W.S. (3d) 15 (C.A.); Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, J.E. 2003-2076, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; El Feky v. Tohamy, [2010] O.J. No. 6002, 2010 ONCA 778; Henry v. British Columbia (Attorney General), [2015] 2 S.C.R. 214, [2015] S.C.J. No. 24, 2015 SCC 24, 18 C.R. (7th) 338, 383 D.L.R. (4th) 383, 336 C.R.R. (2d) 270, [2015] 6 W.W.R. 407, 70 B.C.L.R. (5th) 1, 470 N.R. 200, 369 B.C.A.C. 47, 2015EXP-1352, J.E. 2015-743, 251 A.C.W.S. (3d) 590; Kaiser (Re) (2012), 113 O.R. (3d) 308, [2012] O.J. No. 5601, 2012 ONCA 838, 300 O.A.C. 161, 30 C.P.C. (7th) 223, 97 C.B.R. (5th) 37; Ontario (Attorney General) v. Ontario (Assistant Information and Privacy Commissioner), 2005 6045 (ON CA), [2005] O.J. No. 941, 251 D.L.R. (4th) 65, 197 O.A.C. 278, 10 C.P.C. (6th) 144, 137 A.C.W.S. (3d) 877 (C.A.); R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, J.E. 2002-9, 154 O.A.C. 345, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d) 189, REJB 2001-27030, 51 W.C.B. (2d) 452; R. v. Beatty, [2008] 1 S.C.R. 49, [2008] S.C.J. No. 5, 2008 SCC 5, J.E. 2008-463, EYB 2008-129864, 228 C.C.C. (3d) 225, 54 C.R. (6th) 1, 371 N.R. 119, [2008] 5 W.W.R. 1, 289 D.L.R. (4th) 577, 76 B.C.L.R. (4th) 201, 251 B.C.A.C. 7, 179 C.R.R. (2d) 247, 57 M.V.R. (5th) 1, 76 W.C.B. (2d) 609; R. v. Ciarniello (2006), 2006 29633 (ON CA), 81 O.R. (3d) 561, [2006] O.J. No. 3444, 270 D.L.R. (4th) 365, 215 O.A.C. 29, 211 C.C.C. (3d) 540, 41 C.R. (6th) 310, 144 C.R.R. (2d) 81, 70 W.C.B. (2d) 653 (C.A.); R. v. Cox, [2011] O.J. No. 228, 2011 ONCA 58, 271 O.A.C. 77, 92 W.C.B. (2d) 582 (C.A.); [page243] R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10, 399 N.R. 326, 2010EXP-1163, J.E. 2010-626, EYB 2010-171414, 317 D.L.R. (4th) 1, 73 C.R. (6th) 1, 254 C.C.C. (3d) 1, 283 B.C.A.C. 280, 87 W.C.B. (2d) 70; R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, 222 N.R. 243, J.E. 98-460, 166 N.S.R. (2d) 241, 122 C.C.C. (3d) 1, 13 C.R. (5th) 217, 50 C.R.R. (2d) 108, 37 W.C.B. (2d) 204; R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76, [1993] S.C.J. No. 88, 105 D.L.R. (4th) 681, 157 N.R. 195, J.E. 93-1582, 57 Q.A.C. 130, 83 C.C.C. (3d) 494, 23 C.R. (4th) 280, 17 C.R.R. (2d) 77, 20 W.C.B. (2d) 445; R. v. H. (A.D.), [2013] 2 S.C.R. 269, [2013] S.C.J. No. 28, 2013 SCC 28, 358 D.L.R. (4th) 1, 444 N.R. 293, 2013EXP-1661, J.E. 2013-905, EYB 2013-221977, 295 C.C.C. (3d) 376, 414 Sask. R. 210, [2013] 7 W.W.R. 25, 106 W.C.B. (2d) 640; R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, 29 D.L.R. (4th) 161, 67 N.R. 241, J.E. 86-709, 16 O.A.C. 81, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1, 21 C.R.R. 76, 17 W.C.B. 41; R. v. Roy, [2012] 2 S.C.R. 60, [2012] S.C.J. No. 26, 2012 SCC 26, 259 C.R.R. (2d) 361, 430 N.R. 201, 2012EXP-2100, J.E. 2012-1099, 321 B.C.A.C. 112, 281 C.C.C. (3d) 433, 345 D.L.R. (4th) 193, 28 M.V.R. (6th) 1, 93 C.R. (6th) 1, 100 W.C.B. (2d) 695; R. v. Singh, [2014] O.J. No. 6484, 2014 ONSC 897, 121 W.C.B. (2d) 536, 2014 CarswellOnt 19027 (S.C.J.); R. v. Tiffin (2008), 90 O.R. (3d) 575, [2008] O.J. No. 1525, 235 O.A.C. 52, 2008 ONCA 306, 232 C.C.C. (3d) 303, 57 C.R. (6th) 123, [2008] 5 C.T.C. 77, 170 C.R.R. (2d) 151, 78 W.C.B. (2d) 24; Ramcharitar v. Ramcharitar (2002), 2002 53246 (ON SC), 62 O.R. (3d) 107, [2002] O.J. No. 4238, [2002] O.T.C. 854, 27 C.P.C. (5th) 331, 32 R.F.L. (5th) 435, 117 A.C.W.S. (3d) 762, 55 W.C.B. (2d) 584 (S.C.J.); Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27, 2010 SCC 27, 213 C.R.R. (2d) 166, 321 D.L.R. (4th) 1, 290 B.C.A.C. 222, 2010EXP-2331, 76 C.R. (6th) 207, 7 B.C.L.R. (5th) 203, J.E. 2010-1305, EYB 2010-177090, [2010] 9 W.W.R. 195, 75 C.C.L.T. (3d) 1, 404 N.R. 1; Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161, 118 A.C.W.S. (3d) 341 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 24(1)

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(2) [as am.]

Criminal Code, R.S.C. 1985, c. C-46 [as am.]

Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 46, (1)

Rules and regulations referred to

Criminal Appeal Rules, SI/93-169, rule 2(1)

Criminal Proceedings Rules, SI/2012-7 [as am.], rule 1.04(2)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01

APPEAL by the Crown from the orders of Skarica J., [2014] O.J. No. 6482, 2014 ONSC 2848 (S.C.J.) and [2014] O.J. No. 6484, 2014 ONSC 897 (S.C.J.).

John McInnes, for appellant.

Jesse Razaqpur, for respondent Jaswinder Singh.

Robert Lepore, for respondent Asogian Gunalingam.

No one appearing for respondent Jora Jassal.

Andrea Danon and J. Stanley Jenkins, for intervenor Legal Aid Ontario.

Louis P. Strezos, for intervenor Criminal Lawyers' Association. [page244]

The judgment of the court was delivered by

[1] PARDU J.A.: — The respondents were charged with kidnapping, extortion and assault. About a month into their trial, the Crown realized that it had not disclosed important inculpatory evidence. The trial judge declared a mistrial and ordered the Crown to pay costs to the respondents totalling $580,086.61. The Crown appeals from those costs orders.

A. Background

[2] The police rushed to a Mississauga residence in response to a 911 call, where they found a bound woman in the basement. The respondents, Jaswinder Singh, Asogian Gunalingam and Jora Jassal, were arrested and charged with kidnapping, extortion and assault.

[3] The respondents' trial commenced on January 6, 2014. Nearly a month later, on January 31, the Crown disclosed to the defence important inculpatory evidence for the first time. The evidence consisted of records for a number of cellphones connected with the respondents.

[4] In response to the late disclosure, the respondents brought an application for a stay of proceedings or, in the alternative, a mistrial with a costs order against the Crown. The trial judge concluded that a mistrial was warranted because of failings on the part of the police and the Crown. The trial judge also concluded that he should order the Crown to pay costs to the respondents. After a subsequent hearing, the trial judge determined the quantum of the costs award and ordered that the Crown pay a total of $580,086.61 to the respondents, quantified on the basis of the civil cost regime under the Rules of Civil Procedure.

(1) Cellphone records and disclosure

[5] The cellphone records at issue related to four different phones: a phone that had been seized at the scene of the kidnapping, a phone found in pants connected to one of the respondents, the phone that had been used to make the 911 call, and a phone from British Columbia linked to one of the respondents.

[6] In a letter dated March 19, 2012, counsel for Singh wrote to the Crown and asked for confirmation of the number for the cellphone from which the 911 call had been made. In a letter dated March 19, 2012, he also requested "any information that may be of interest to the defence, but which [the Crown has] chosen not to disclose for any reason". [page245]

[7] In a letter dated April 22, 2012, counsel for Singh stated:

In the event that you are in possession of any information that may be of interest to the defence, but which you have chosen not to disclose for any reason, please advise us of the existence [of] any such information and your reasons for refusing to disclose it, so that any appropriate application may be made to the trial judge for a determination as to the appropriateness of the decision to not disclose the information.

[8] On April 25, 2012, the Crown responded with a seven-page letter providing various responses to the disclosure requests, and in particular indicating the following:

12. Withheld disclosure. I am withholding no other disclosure at this time. I understand that further disclosure, as a result of analysis of cell phone records, will be provided in the future, and my present intention is to provide that to you.

13. Phone number used to call 911 to report "something bad". As noted on the incident history, the number used to place this call is 647-[phone number omitted]. This number is apparently registered to Shalini Mahalingham. According to Ms. Mahalingam's statement (already disclosed) while this number is registered to Ms. Mahalingham, it is used by her boyfriend, Asogian Gunalingam.

[9] Despite the Crown's promise to provide the results of the cellphone analysis, the records were not provided.

[10] Police had sought production orders for the cellphones in December 2011, a month after the charges were laid, and obtained the records by the end of March 2012. A preliminary hearing took place in July and November 2012 and pretrial motions were heard in November and December 2013. A jury was selected in November 2013, and the trial began on January 6, 2014. By that time, the Crown originally assigned to the matter was unavailable due to a conflict with another trial and a new Crown was assigned to conduct the respondents' trial. None of the cellphone records had been disclosed.

[11] There is no evidence that counsel for any of the respondents raised the issue of the cellphone records promised by the Crown when they did not materialize. About a month into the trial, the Crown realized the cellphone records had not been disclosed and that a cellphone purportedly belonging to the respondent Gunalingam had just recently been "fired up for examination".

(2) Mistrial application

[12] As noted, after the late disclosure of the cellphone records, the respondents applied for a stay of proceedings or, in the alternative, a mistrial. [page246]

[13] The trial judge found that the respondents' right to a fair trial had been prejudiced. The trial judge found that the police had lost key evidence (a wallet and identification said to belong to the respondent Gunalingam found in his pants along with a blank cheque and driver's licence belonging to the victim) and had failed to discover relevant evidence, due to unacceptable negligence. The trial judge also found that the Crown's failure to disclose the cellphone records in a timely fashion "resulted due to the negligence of the Crown". All of this evidence, the trial judge held, was highly relevant to the respondents' defence theory that the police had planted evidence. Therefore, trial fairness required that the respondents be permitted to reassess their respective strategies in light of the newly disclosed cellphone evidence.

[14] The trial judge [2014 ONSC 897, [2014] O.J. No. 6484] concluded [at para. 87] that this was not one of "those rare aeclearest of cases' where a stay is appropriate" and, importantly, noted that [at para. 85] "there is no evidence of any deliberate misconduct" on the part of the Crown or the police. He decided [at para. 88] that "prejudice to the accused can be remedied and the accused's right to full answer and defence can be protected by fashioning a remedy under section 24(1) of the Charter that would restore all of the accused to the same position they were in before the pre-trial motions commenced". Consequently, he declared a mistrial and made a number of related orders, including ordering that the Crown pay costs to the respondents.

(3) Trial judge's decision on entitlement to costs

[15] With reference to this court's decisions in R. v. Ciarniello (2006), 2006 29633 (ON CA), 81 O.R. (3d) 561, [2006] O.J. No. 3444 (C.A.) and R. v. Tiffin (2008), 90 O.R. (3d) 575, [2008] O.J. No. 1525, 2008 ONCA 306, the trial judge concluded that a costs award can be made against the Crown where there is a marked and unacceptable departure from the reasonable standards expected of the prosecution or, in rare situations, where there is an extreme hardship inflicted on the accused.

[16] On the first branch, the trial judge noted that there were a number of violations of s. 7 of the Canadian Charter of Rights and Freedoms in this case which either did not amount to a [at para. 90] "marked and unacceptable departure" or that were not attributable to the Crown. However, the trial judge stated [at para. 92] that the late disclosure of the cellphone records was "on an entirely different footing". Earlier in his reasons, the trial judge found that the Crown had been negligent in failing to disclose the cellphone records, but that there was no evidence of [page247] deliberate misconduct. The trial judge held that the Crown was obliged to explain the reasons for the material non-disclosure and had failed to do so. After reviewing in detail the history leading up to the eventual disclosure, the trial judge concluded [at para. 95] that "the totality of the circumstances that led to the very late disclosure of the cell phones show[ed] a aemarked and unacceptable departure from the reasonable standards expected of the prosecution'".

[17] On the second branch, the trial judge noted that the conduct of both the Crown and the police had resulted in numerous breaches of s. 7 of the Charter and the three accused, through no fault of their own, incurring hundreds of thousands of dollars in legal costs. He concluded that it would work an extreme hardship on the accused to pay these extensive legal fees.

[18] On these dual bases of a [at para. 95] "marked and unacceptable departure from the reasonable standards expected of the prosecution" and extreme hardship to the accused, the trial judge concluded that a costs award in favour of the respondents was an appropriate and just remedy for non-disclosure of the phone records, pursuant to s. 24(1) of the Charter.

(4) Trial judge's decision on the amount of costs

[19] After a subsequent hearing, the trial judge determined the quantum of costs that the Crown would be required to pay. The trial judge held that all pre-trial motions would have to be re-heard because of the impact of the cellphone records on the defence approach. Therefore, he decided that an award of costs which fully indemnified the respondents for all costs thrown away on the motions and the trial was justified.

[20] The trial judge observed that neither the Criminal Code [R.S.C. 1985, c. C.46] nor the Criminal Proceedings Rules, SI/2012-7 provide guidance as to the quantum of a costs award in criminal matters. He referred to rule 1.04(2) of the Criminal Proceedings Rules, which states that, "Where matters are not provided for in these rules, the practice shall be determined by analogy to them." He concluded that this allowed him to import into the criminal trial context the civil costs regime. He applied rule 57.01 of the Rules of Civil Procedure.

[21] Before the trial judge, the Crown argued that the costs payable to Gunalingam should be reduced because he was legally aided, and that Singh should be required to disclose if he was legally aided as well. The trial judge rejected both propositions.

[22] With reference to s. 46 of the Ontario Legal Aid Services Act, 1998, S.O. 1998, c. 26 ("LASA") and s. 131(2) of the [page248] Courts of Justice Act, R.S.O. 1990, c. C.43, the trial judge concluded that a legally aided defendant should be able to claim costs at the usual rate of their counsel and not those set by legal aid. In reaching that conclusion, the trial judge adopted the jurisprudence relating to an award of costs to a party funded by legal aid in the civil context. The trial judge held that the costs awarded should be based on the market rate charged by counsel, instead of the lower rates paid to lawyers working on a legal aid certificate: Ramcharitar v. Ramcharitar (2002), 2002 53246 (ON SC), 62 O.R. (3d) 107, [2002] O.J. No. 4238 (S.C.J.); El Feky v. Tohamy, [2010] O.J. No. 6002, 2010 ONCA 778; and Abdiwahab v. Mohamuud, [2013] O.J. No. 4482, 2013 ONSC 6194 (S.C.J.).

[23] The trial judge also concluded that the fact that an individual is legally aided is privileged. Therefore, Singh did not have to disclose whether he was legally aided or not.

[24] The trial judge, again with reference to the civil costs regime, concluded that an award on the substantial indemnity scale was warranted in this case. He stated that such an award would (a) compensate the respondents for costs thrown away at the pre-trial motions and trial proceedings; (b) fulfil the objective of crafting a remedy that would restore all of the accused to the same position they were in before the pre-trial motions; and (c) enable the court to control its process regarding flagrant and unjustified non-disclosure by the Crown.

[25] Applying these principles, the trial judge

awarded costs to Jassal, based on an hourly rate of $700, in the sum of $205,066.75;

awarded costs to Gunalingam, based on an hourly rate of $700, in the sum of $245,526.40;

awarded costs to Singh, based on an hourly rate of $400, in the sum of $129,493.78.

[26] Ultimately, the matter did proceed to trial before a jury and another judge. The cellphone records did not have significant impact on the case against Singh, and he was acquitted. The respondents Jassal and Gunalingam were convicted and sentenced to penitentiary terms of nine and 12 years, respectively. Some of the evidence found on the Blackberry was powerfully incriminatory.

B. Issues on Appeal

[27] This appeal presents two questions. First, was the trial judge correct in concluding that a costs award against the Crown [page249] was warranted in this case? Second, if a costs award was warranted, was the trial judge correct in his approach to quantifying those costs?

[28] For the reasons that follow, the trial judge erred in concluding that a costs award against the Crown was warranted in this case. For that reason, it is not strictly necessary to address issues regarding the quantification of costs or legal aid. Nonetheless, I will make comments on those matters.

C. When Should a Court Award Costs Against the Crown for Non-Disclosure Pursuant to S. 24(1) of the Charter?

[29] Before this court, the parties disagree on the scope of a court's authority to award costs against the Crown in a criminal proceeding. The Crown argues that a court's authority to order costs "remains indelibly linked to its conventional, narrowly-drawn antecedents" and is restricted to cases of serious Crown misconduct. The respondent takes an entirely contrary position and argues that a court may award costs both in cases of Crown misconduct and for any Charter infringement.

[30] I would reject both positions. A review of the jurisprudence reveals that the courts have balanced competing objectives when circumscribing the availability of costs pursuant to s. 24(1).

[31] As recognized by McLachlin C.J.C. in Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27, 2010 SCC 27, at paras. 16-19, s. 24(1) provides a "broad discretion to determine what remedy is appropriate and just in the circumstances of a particular case" but it does not provide an unfettered discretion. "What is appropriate and just will depend on the facts and circumstances of the particular case" and prior case law provides guidance when a court is determining an appropriate and just remedy: Ward, at para. 19.

[32] It is now well established that a trial judge may award costs against the Crown for a breach of its disclosure obligations. As indicated in R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, at paras. 80, 81 and 87:

Costs awards to discipline untimely disclosure are integrally connected to the function of the provincial offences court as a quasi-criminal trial court. Costs awards have a long history as a traditional criminal law remedy. Although sparingly used prior to the advent of the Charter, superior courts have always possessed the inherent jurisdiction to award costs against the Crown. In recent years, costs awards have attained more prominence as an effective remedy in criminal cases; in particular, they have assumed a vital role in enforcing the standards of disclosure established by this Court in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. [page250]

Such awards, while not without a compensatory element, are integrally connected to the court's control of its trial process, and intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure. Deprived of this remedy, a provincial offences court may be confined to two extreme options for relief -- a stay of proceedings or a mere adjournment -- neither of which may be appropriate and just in the circumstances. Since untimely pre-trial disclosure will rarely merit a stay of proceedings when the court can protect the fairness of the trial with a disclosure order denying the provincial offences court the jurisdiction to issue a costs award may deprive it of the only effective remedy to control its process and recognize the harm incurred, even in cases involving unjustified and flagrant disregard for the accused's rights. In these circumstances, the issuance of a costs award is a quintessential example of "the development of imaginative and innovative remedies when just and appropriate" that Lamer J. identified as essential to the meaningful enforcement of Charter rights through the s. 24 guarantee.

Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily. Crown counsel is not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, 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. I fail to see how the provision of an expedient remedy in such cases, from a trial court that is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice.

(Emphasis added; citations omitted)

[33] The phrase "marked departure" is used in many contexts to indicate a deviation from a norm that goes beyond mere negligence: see, for example, failure to provide necessities of life in R. v. Cox, [2011] O.J. No. 228, 2011 ONCA 58, 271 O.A.C. 77, at paras. 29-31; and careless use of a firearm in R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76, [1993] S.C.J. No. 88, at pp. 93-94 S.C.R. In R. v. Beatty, [2008] 1 S.C.R. 49, [2008] S.C.J. No. 5, 2008 SCC 5, the court held, at paras. 33-36, that a mere departure from the standard expected of a reasonably prudent person -- sufficient for civil negligence -- is not sufficient for criminal negligence and does not amount to a "marked" departure from the norm: see, also, R. v. Roy, [2012] 2 S.C.R. 60, [2012] S.C.J. No. 26, 2012 SCC 26, at paras. 36-38.

[34] The Supreme Court of Canada has also addressed the concept of a "marked and substantial departure" in the context of criminal negligence causing death. The court held that criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk: [page251] R. v. H. (A.D.), [2013] 2 S.C.R. 269, [2013] S.C.J. No. 28, 2013 SCC 28, at para. 61.

[35] While these examples occur in the context of criminal offences, they give background and context to the use of the phrase "marked and unacceptable departure" in 974649 Ontario Inc. at para. [87].

[36] The policy reasons underlying a more elevated fault threshold in the context of Crown failures to meet disclosure obligations were described in Henry v. British Columbia (Attorney General), [2015] 2 S.C.R. 214, [2015] S.C.J. No. 24, 2015 SCC 24, at paras. 69-70 and 91:

[All] failures to disclose are not made equal. Highly blameworthy conduct, such as the intentional suppression of crucial evidence to obtain a conviction at all costs, sits at one end of the spectrum. At the other, one finds good faith errors in judgment about the relevance of certain tangential information. Both scenarios constitute a breach of an accused's Charter rights. Yet, manifestly, these scenarios do not possess the same persuasive force in terms of justifying a Charter damages award under s. 24(1).

Given the complex nature of many disclosure decisions, courts should be exceedingly wary of setting a liability threshold that would award Charter damages for even minor instances of wrongful non-disclosure. Crown counsel will, from time to time, make good faith errors. Exposing prosecutors to potential liability every time such errors are made would, in my view, interfere with the proper execution of prosecutorial functions. Setting the liability threshold too low would also pose a considerable risk that baseless damages claims against the Crown would proliferate.

It may seem harsh to deny Charter damages for cases of wrongful non-disclosure which, while less serious, still result in a violation of an accused's Charter rights. However, it is a reality that wrongful non-disclosures will cover a spectrum of blameworthiness, ranging from the good faith error, quickly rectified, to the rare cases of egregious failures to disclose exculpatory evidence. Given the policy concerns associated with exposing prosecutors to civil liability, it is necessary that the liability threshold be set near the high end of the blameworthiness spectrum. In reaching this conclusion, I do not purport to create silos of Charter violations, classifying some as worthy of concern and others as inconsequential. Courts should endeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies. Nevertheless, when it comes to awarding Charter damages, courts must be careful not to extend their availability too far.

[37] Even in the context of exposure to civil liability, the broad remedial power provided by s. 24(1) may be counter-balanced by the availability of alternate remedies, and policy factors that justify restricting the state's exposure to civil liability, as noted in paras. 38 and 39 of Henry:

The first countervailing consideration is the existence of alternative remedies. Section 24(1) is a broad remedial provision that provides a range of responses to Charter violations beyond a monetary award. In addition, there [page252] may be substantial overlap between private law and s. 24(1) actions against the government. Where the state can show that another remedy is available to effectively address a Charter breach -- whether under the Charter or in private law -- a damages claim may be defeated at the third step of Ward. For instance, if a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances: Ward, at para. 37.

The second countervailing consideration -- and the one at issue in this case -- relates to concerns over good governance. Ward does not define the phrase "[g]ood governance concerns" (para. 38), but it serves as a compendious term for the policy factors that will justify restricting the state's exposure to civil liability. As the Chief Justice observed:

In some situations, . . . the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. [Emphasis added; para. 39.]

[38] As the above-noted passage makes clear, inadvertent error is not enough to justify an award of costs for breach of the disclosure obligation and costs awards for such breaches will not be "routinely ordered in favour of accused persons who establish Charter violations": Ciarniello, at para. 36. A costs award against the Crown will not be an "appropriate and just remedy" under s. 24(1) of the Charter absent a finding that the Crown's conduct demonstrated a "marked and unacceptable departure from the reasonable standards expected of the prosecution", or something that is "rare" or "unique" that "must at least result in something akin to an extreme hardship on the defendant": Ciarniello, at paras. 31-36; see, also, Tiffin, at paras. 93-101.

D. The Trial Judge Erred in Awarding Costs Against the Crown in this Case

[39] The trial judge erred in concluding that an award of costs was warranted in this case. I come to that conclusion for three reasons.

[40] First, in this case, the trial judge erred in equating negligence with a "flagrant or marked departure from the norm". There is no suggestion in this case of an intentional failure to provide disclosure in a timely fashion. In fact, as previously noted, the trial judge expressly found there was no evidence of deliberate misconduct on the part of the Crown (or the police for that matter). The trial judge essentially found that this case "fell through the cracks" because multiple prosecutors were assigned to it. This was also not a case where the Crown failed to disclose exculpatory evidence already in the hands of prosecutors, as occurred in R. v. Logan (2002), 2002 44927 (ON CA), 59 O.R. (3d) 575, [2002] O.J. No. 1817 (C.A.). [page253] In Logan, the Crown failed to disclose notes of a Crown interview with an eyewitness until two weeks after the start of the trial. The differences between the late disclosed notes and an earlier statement by the eyewitness were significant, and significantly weakened the case for the Crown. Here, the inadvertent failure to disclose inculpatory evidence because of staffing problems did not amount to a flagrant or "marked" departure from the norm expected of a reasonable prosecutor; it was arguably negligent, but did not reach the level required to sustain an order for costs against the Crown.

[41] Second, defence inaction was a relevant factor to consider in deciding whether the failure to disclose the cellphone records was a marked and unacceptable departure. The trial judge gave no weight to this factor. He mischaracterized the issue of defence inaction by concluding that a defence request for disclosure would have amounted to conscription of the police into conduct of an investigation for the accused. The trial judge failed to consider this important factor in the assessment of the overall conduct of the Crown. It is well recognized that the nature of the disclosure process makes it prone to human error. It is a process which engages both the Crown and the defence. Here, the Crown indicated that it intended to produce the cellphone records. Defence counsel was apparently silent when these records were not produced, perhaps for good reason. As explained in R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, at paras. 37 and 38:

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information and yet remained passive as a result of a tactical decision or lack of due diligence, it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial.

[42] The Crown advised the defence of its intention to disclose the material so there was no question of the defence being entitled to the material and no basis to conclude that the respondents, in asking for what the Crown had already promised to them, would be doing anything but acting diligently. Failure on the part of the defence to pursue outstanding disclosure diligently [page254] must at least be considered in assessing the failures of the Crown and determining where the Crown's conduct falls on the spectrum.

[43] Third, the trial judge erred in awarding costs on the ground of "extreme hardship". He held, at para. 96 [ 2014 ONSC 897, [2014] O.J. No. 6484 (S.C.J.)]:

Further, regarding a costs award pursuant to section 24(1), I have found numerous breaches of section 7 which have necessitated a mistrial in this matter due to the negligence of both the Crown and the police. That negligence has resulted in the three accused, through no fault of their own, incurring hundreds of thousands of dollars in legal costs that could have been avoided had the prosecution provided timely disclosure as they were obligated to do. I find that this is one of those rare and unique circumstances where it would work an extreme hardship on the accused to pay these extensive legal fees. Accordingly, a costs award is an appropriate and just section 24(1) remedy in these circumstances.

[44] There was no evidence of extreme hardship, or that the respondents were unable to defend themselves. There was nothing to suggest that this case was in any way "unique" or "exceptional". The fact that the accused had incurred costs which might have been avoided is, without more, an ordinary and expected outcome of a mistrial. In Tiffin, at para. 98, this court held that, even though the defendants in that case had suffered a serious Charter breach, the circumstances of that case did not justify a costs award.

[45] Furthermore, here the trial judge visited police failings on the Crown. As noted in Tiffin, at para. 96, costs orders will not be made against the Crown for the misconduct of other parties, such as witnesses or investigative agencies, unless the Crown has participated in the misconduct. Where some other party has engaged in misconduct, the appropriate remedy is a civil claim for damages. The Crown could not reasonably be expected to search police offices for the lost wallet, or prevent that loss.

E. Quantum of the Costs Award

[46] Since I would set the costs order aside, it is not necessary to comment on the issue of the amount of costs to be ordered for breach of the Crown duty of disclosure, but some remarks should be made about the trial judge's assessment of those costs.

[47] As noted by McLachlin C.J.C. in Ward, at para. 46: "The watchword of s. 24(1) is that the remedy must be aeappropriate and just'. This applies to the amount, or quantum, of damages awarded as much as to the initial question of whether damages are a proper remedy." For the reasons that follow, even if costs were warranted, the quantum of costs awarded by the trial judge was not appropriate and just. [page255]

(1) Did the trial judge err in importing the civil costs regime?

[48] In my view, it is an error to import the civil costs regime into the criminal law context, for three reasons.

[49] First, the trial judge erred in concluding that the Criminal Proceedings Rules permitted him to import the civil costs regime by analogy. The Criminal Proceedings Rules provide in rule 1.04(2) that, "[w]here matters are not provided for in these rules, the practice shall be determined by analogy to them". This rule provides that a matter not explicitly provided for may be determined by analogy to the Criminal Proceedings Rules; it does not permit an analogy to the Rules of Civil Procedure.

[50] That fact becomes even clearer when the Criminal Proceedings Rules are compared to rule 2(1) of the Criminal Appeal Rules, SI/93-169. That rule provides that, "[e]xcept where otherwise provided by the Code, a statute or these rules, the Rules of Civil Procedure where appropriate and with necessary modifications apply to criminal appeals".

[51] Second, there is a fundamental difference in the purpose for awarding costs in the civil context versus the criminal one. Costs in civil cases are intended to partially indemnify a litigant, to encourage settlement, to deter frivolous proceedings and to discourage unnecessary steps: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.); 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757, [2006] O.J. No. 4248 (C.A.).

[52] Costs awarded in the criminal context, on the other hand, serve an entirely different purpose. As Sharpe J.A. observed in Ciarniello, at paras. 32-33:

Routine costs awards in favour of the winning party are a feature of civil, not criminal proceedings. Costs awards in civil litigation serve several purposes. Costs in civil cases are awarded on the compensatory principle that it is just to allow the successful civil litigant at least partial indemnity for the costs of the action. Costs sanctions are also an important tool at the disposal of civil courts to control proceedings and to discourage unreasonable or inappropriate behaviour. Especially when fortified with offer to settle rules that penalize unreasonable litigation, the threat of an adverse costs award serves to discourage unnecessary or frivolous litigation and encourages parties to settle their disputes.

Different considerations apply to criminal proceedings. Criminal proceedings are brought in the public interest, not by one party to vindicate his or her private interests as against another. As Devlin L.J. explained in Berry v. British Transport Commission, [1962] 1 Q.B. 306, [1961] 3 All E.R. 65 (C.A.), at p. 327 Q.B.: "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." Costs are not usually deployed in criminal law to influence [page256] the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to the accused to defend the case. As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award. As explained by McFadyen J.A. in R. v. Robinson, 1999 ABCA 367, [1999] A.J. No. 1469, 142 C.C.C. (3d) 303 (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 Crown officer carrying out such public duties.

[53] Costs awarded against the Crown for falling short of its disclosure obligations in criminal proceedings are "intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure": 974649 Ontario Inc., at para. 81. While there may be some element of compensation, indemnity is not the focus. Rather, the purpose of the costs award is to ensure that an accused is not effectively deprived of the ability to mount a defence because of the costs associated with the failure to disclose.

[54] The moderating effect of the Crown's public duties on costs award is evident even in cases where the beneficiary of the award is not an accused. In Ciarniello, for example, a third party who was never charged, and not the target of the investigation, successfully challenged seizure of property pursuant to a search warrant. The application judge found that there had been a serious breach of the third party's Charter rights. The bill of costs totalled over $87,000, of which the appellant was expected to pay about $28,000, given his limited means. Costs were awarded to the third party in the sum of $20,000.

[55] The purpose for awarding costs against the Crown in criminal proceedings is fundamentally different from those associated with costs in a civil proceeding. Therefore, different considerations must apply to how costs are quantified.

[56] Third, the Rules of Civil Procedure contemplate the "losing" party paying the costs of the "winning" party through private funds and not a situation where the payment of costs comes out of the public purse. This court noted in R. v. Figueroa (2003), 2003 42300 (ON CA), 64 O.R. (3d) 321, [2003] O.J. No. 1783 (C.A.) that the costs provisions under the Rules of Civil Procedure are ill-suited to a context where funds to be paid come from public funds. Figueroa dealt with the question of what remuneration rate should apply to an independent prosecutor appointed by the court. Goudge J.A. stated, at paras. 24, 29 and 31: [page257]

Nor is Rule 57 of the Rules of Civil Procedure, and the cost grid which accompanies it, of great assistance. It is meant to apply to civil proceedings where one party (normally the losing party) has been ordered to pay costs to another party (normally the winning party) in the litigation[.]

[I]t must be remembered that the rate fixed for the independent prosecutor will be paid from public funds. In an age where there are so many pressing needs taxing that resource, I do not think that it should be used to pay at private sector rates.

Viewed in the context I have described, I think the trial judge erred in fixing the rate for the independent prosecutor. He appears to have considered only counsel's "normal rate" which Mr. Shields acknowledged to be his normal rate for private sector clients. It is of no moment that this rate is within the range provided by the costs grid in the Rules of Civil Procedure for the substantial indemnity of a party whose lawyer has Mr. Shields' years at the bar. The costs grid is part of the process provided by Rule 57, which, as I have said, is for an entirely different purpose -- namely, the quantifying of costs ordered to be paid by one litigant to another litigant. Moreover, even when applied in its proper context, the costs grid should not be simply to sanction a lawyer's marketplace rate.

[57] While arising in a different context, Goudge J.A.'s comments are equally applicable to the issue of awarding costs against the Crown in a criminal proceeding. In my view, quantifying a costs award against the Crown in a criminal context requires a trial judge to exercise discretion and adjust rates and overall costs requested by the accused having regard for the fact that the funds are coming from the public purse and that the purpose of a costs award against the Crown in a criminal context is to provide "a reasonable portion" of the costs an accused incurs to secure his Charter rights, as per Ciarniello. See, also, Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.), at para. 4. How the precise calculation should be done, as noted, is a matter for the trial judge's discretion, but the following factors should be considered where the issue is non-disclosure:

the nature of the case and the legal complexity of the work done;

-- the length of the proceedings;

-- the nature and extent of the misconduct found;

-- the impact of the misconduct on the rights of the accused;

the efforts (or lack thereof) of defence counsel to diligently follow up on disclosure; and [page258]

the actual impact upon the accused's ability to defend the charges in the future.

[58] The last factor brings me to the final point to be addressed -- the legally aided accused. The intervenor Legal Aid Ontario ("LAO") asserts that whether a party is legally aided and the fee arrangement between the party and LAO are irrelevant, privileged and/or confidential, and should not be disclosed or be a factor in quantifying a costs award against the Crown. I will first consider whether the fact that an accused is legally aided constitutes privileged information, and then whether that fact is relevant to the quantum of costs awarded against the Crown.

(2) Is the fact that an accused is legally aided and the

accused's fee arrangement with LAO privileged?

[59] The Supreme Court of Canada noted in Maranda v. Richer, [2003] 3 S.C.R. 193, [2003] S.C.J. No. 69, 2003 SCC 67, at para. 32, that there may be widely varying aspects to a professional relationship between a solicitor and a client. The existence of a lawyer's bill of account and its payment arises out of the solicitor-client relationship and must, as a general rule, be regarded as an element of that relationship.

[60] However, Maranda and the Supreme Court of Canada's later decision in R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10 also make two principles clear. First, the purpose for and context in which information is sought is highly relevant when determining whether the information at issue is protected by privilege. Second, the presumption of privilege can be rebutted where disclosure will not violate the confidentiality of the solicitor-client relationship by revealing, directly or indirectly, any communication protected by the privilege. This court has adopted and applied these principles in several cases: see, for example, Ontario (Attorney General) v. Ontario (Assistant Information and Privacy Commissioner), 2005 6045 (ON CA), [2005] O.J. No. 941, 197 O.A.C. 278 (C.A.); Kaiser (Re) (2012), 113 O.R. (3d) 308, [2012] O.J. No. 5601, 2012 ONCA 838.

[61] In Maranda, the information at issue was sought to further a criminal investigation targeting the client. Here, the context is very different. It is difficult to see how disclosure of the fact that an accused was legally aided and the fee arrangement, for purposes of tabulating an appropriate costs award, are protected by privilege. As the court noted in Cunningham, at para. 32, disclosure of information related to fees paid, where it is unrelated to the merits of a case and will not cause prejudice [page259] to the client, does not attract the protection of solicitor-client privilege. In my view, the fact that a client is legally aided (a fact routinely revealed in trial and appellate courts for purposes of case management) does not constitute privileged information. Depending on the purpose for which the information is sought, the specific details of the fee arrangement may also not give rise to a presumption of privilege. An accused who claims costs against the Crown, based in part on his counsel's account, must expect that the account will be scrutinized for reasonableness.

[62] However, even assuming privilege applied to the details of a fee arrangement in this context, it can be rebutted by evidence showing either (1) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the exposure of solicitor-client communications; or (2) that the requested information is not linked to the merits of the case and its disclosure does not prejudice the client: Kaiser (Re), at para. 30; Cunningham, at paras. 30-31; Maranda, at para. 34.

[63] In the circumstances of this case, revealing an accused's status as legally aided or their fee arrangement is not likely to reveal, directly or indirectly, communications between the client and his solicitor. Nor is there any possibility of prejudicing the client, given that the information is not linked to the merits of the case.

(3) Is the fact that a client was legally aided relevant to a determination of a costs award against the Crown in a criminal proceeding?

[64] As noted, LAO argues that the fact that an accused is legally aided is irrelevant to the quantum of any costs awarded. Their position is that costs should be quantified on the basis of counsel's usual rates. LAO bases its argument on s. 46 of the LASA, which stipulates that costs awarded for legally aided clients must be based on the lawyer's rate, not the hourly rate established by LAO.

[65] In my view, the fact that one or two of the respondents was legally aided was relevant when determining if either suffered financial hardship, and if either was deprived of the ability to defend himself because of financial hardship. It goes directly to the issue of whether a costs award should have been granted based on the second branch of the test set out in Ciarniello.

[66] Further, the fact that one or two of the respondents was legally aided was also relevant to the quantum of costs. I have already discussed the policy considerations at play in making a costs award against the Crown in a criminal context generally. [page260] In a criminal law context, as noted, indemnification is not a primary objective when awarding costs. That is particularly true when, as in this case, payment is being sought from one public purse (i.e., the Crown) for another (i.e., LAO). It may be appropriate to fix a moderate amount to denounce non-disclosure in the case before the court and to deter future non-disclosure. However, an accused seeking costs should not expect to recover costs well in excess of the amount actually expended for his defence, even if those costs become the property of the legal aid plan.

[67] Moreover, s. 46(1) of the LASA cannot be construed to limit the court's power under s. 24(1) of the Charter to create "appropriate and just" remedies for Charter violations. In the context of a Charter remedy, the discretion granted to the courts to create an appropriate and just remedy is very broad: R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39; Ward, at paras. 16-18. As observed in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 2 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, at paras. 55-58, an appropriate remedy will (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made. Furthermore, as the court observed, at para. 51, the power to grant remedies under s. 24(1) is "part of the supreme law of Canada. It follows that this remedial power cannot be strictly limited by statutes or rules of the common law."

[68] Interpreting s. 46(1) of the LASA and related jurisprudence in civil cases as determinative of how costs will be quantified in a criminal proceeding goes well beyond its scope of application. This court was not directed to any cases in which s. 46(1) of the LASA was successfully invoked to dictate how the court should fashion a costs remedy for a Charter breach in a criminal context. For the reasons noted above, s. 46(1) of the LASA ought not to be given such an expansive interpretation.

F. Disposition

[69] In this case, the failure to disclose the cellphone records was inadvertent, and was not pursued by defence counsel. The respondents were granted a mistrial, and there was no evidence that they were rendered unable to defend themselves. If costs had been appropriate, a significantly more modest amount would have been sufficient to accomplish the purposes of an order for costs in this context (i.e., to control of the trial process, [page261] discipline flagrant and marked failures to disclose and provide some element of indemnity for costs actually incurred). The costs awarded went well beyond any account rendered to LAO, another public institution.

[70] For the reasons noted, I would allow the appeal and set aside the orders for costs below.

Appeal allowed.

End of Document