Court File and Parties

Ontario Court of Justice

Date: 2015-12-16

Court File No.: London 15-9627

Between:

Her Majesty the Queen

— and —

Richard Kocet

Before: Justice A. T. McKay

Heard on: September 14 and October 27, 2015

Reasons for Judgment released on: December 16, 2015

Counsel:

• Mr. T. Koverko — counsel for the Crown
• Mr. A. Prevost — counsel for the defendant Richard Kocet

MCKAY J.:

INTRODUCTION

[1] Mr. Kocet was charged with one count of common assault. The alleged victim was his common-law spouse, Jocelyn Burton. Apparently a neighbour heard the couple arguing, and at 4:17 p.m. on July 4, 2015, telephoned the police. A police officer attended and spoke with Ms. Burton at 8:46 p.m. Ms. Burton complained of an assault at the hands of Mr. Kocet. As a result, an arrest warrant was issued for Mr. Kocet.

[2] On July 6, 2015, police were advised by family members that Ms. Burton wanted to withdraw her allegations. At approximately 8:30 p.m. that evening, Ms. Burton attended police headquarters and indicated that the allegations that she made on July 4, 2015, were false and that she was not assaulted. The police sent a memo to the Crown Attorney's office the same day providing that information.

[3] At approximately 2:57 a.m. on July 7, 2015, Mr. Kocet attended police headquarters to turn himself in, pursuant to the warrant. He was taken into custody. Later that morning, the Crown screened the charge against Mr. Kocet, indicating that a custodial sentence would not be sought. Notwithstanding that position, the Crown opposed interim release of Mr. Kocet on bail. On July 7, with Ms. Burton present in court, the matter was adjourned to July 8 for a bail hearing.

[4] On July 8, 2015, a bail hearing was held. Ms. Burton testified under oath that her original allegations to the police were false and that she was not assaulted. At the conclusion of the bail hearing, the Crown invited the court to release Mr. Kocet on an undertaking requiring him to return to court when required and to abstain from the use of alcohol. The Crown also identified that there was an issue as to whether the Crown would proceed with the charge. Mr. Kocet was released on an undertaking which obligated him to return to court when required.

[5] The Crown did proceed with the charge. The defence served and filed an application under the Charter of Rights alleging that the Crown decision to proceed with the prosecution in the face of Ms. Burton's recantation of the original allegations on multiple occasions, and the absence of any other evidence, involved the improper exercise of Crown discretion, and constituted a violation of Mr. Kocet's right to life, liberty and security of the person under section 7 of the Charter. The defence requested an order of costs against the Crown pursuant to section 24(1) of the Charter.

[6] At trial, the Crown called one witness, Ms. Burton. She testified that her original complaint to the police was false, and that she was never assaulted. The Crown invited the court to acquit Mr. Kocet. The defence requested that the Court hear submissions on the Charter application. The Crown took the position that, although the application had been served more than 30 days in advance of the trial date, the defence Factum and casebook was not filed until 10 days prior to trial. Accordingly, the Crown required an adjournment in order to properly respond to the application for costs. The court adjourned the matter to October 27 to allow the Crown to file additional material. On October 27, the Crown did not file any additional material, and the court heard submissions on the Charter application.

[7] This is the decision on the Charter application.

EVIDENCE

The evidence is neither complicated, nor significantly in dispute. The parties agreed that I should consider the transcript of the bail proceedings, an affidavit filed by Mr. Kocet, and the evidence at trial.

Evidence at the Bail Hearing

[8] The police attended the residence and spoke to Ms. Burton during the evening of July 4. She advised the officer that there had been an altercation with Mr. Kocet the evening of July 3. Essentially, she indicated to the officer that Mr. Kocet came home intoxicated after consuming alcohol. He was angry and began yelling and swearing at her. He grabbed her by the front of her shirt with one hand, and with the other hand "Slightly punched me, but missed and pulled me to the ground and broke my necklace". She told the officer that she suffered injuries; bruising under her right eye, a scratch on her left ankle and a huge bruise on her left thigh. The officer observed "slight bruising to the bottom of Jocelyn's right eye and a small scratch on her left ankle". Because of the clothing that she was wearing, the officer could not observe her thigh. She was to attend police headquarters to have the injuries photographed, but did not do so.

[9] On the basis of Ms. Burton's statement, the officer obtained a warrant for the arrest of Mr. Kocet. On July 6, Ms. Burton attended at police headquarters. She spoke with police, and provided a written statement to the police. That statement indicated the following:

"I am writing this to explain the situation that occurred on July 3rd (Friday evening) which led to police call on Saturday, July 4th to 95 Deveron. I feel I was forced into giving a statement which was not true. I was also mad and upset which led to things being said that were not true. Rich Kocet did not grab me and throw me to the ground and did not break my phone. I want to take back the statement that was made that night to the police officer. I am sorry for not being truthful and causing all of this."

[10] The police forwarded that statement to the Crown Attorney's office on July 6.

[11] In the early morning hours of July 7, 2015, Mr. Kocet surrendered himself to police pursuant to the arrest warrant. He was detained in custody. He appeared in bail court later that morning with his counsel. The Crown took the position that they would not consent to his release, and asked for a bail hearing date to be set. Defence counsel pointed out that he was in possession of a Crown screening form which indicated that on a plea of guilt, the Crown would be requesting a probationary disposition. Defence counsel also pointed out that while Mr. Kocet had been previously convicted of breaching court orders, the last conviction related to an offence on July 20, 2007. Finally, defence counsel pointed out that Ms. Burton was present in the court that day and had already recanted her allegations in writing. The Crown maintained that it had concerns related to the secondary grounds, and would not consent to release. The matter was adjourned to July 8 for a bail hearing.

[12] At the bail hearing, the defence consented to the Crown simply reading in the allegations. The defence then called Ms. Burton as a witness. She testified under oath that in her original statement, she lied to the police because she was angry and upset. She testified that Mr. Kocet did not assault her on July 3. She testified that she did not suffer any injuries on July 3. On a previous occasion in the backyard, she scratched her ankle on a piece of wood. That was the scratch observed by the police officer. She indicated she did not have any bruising when she spoke with the officer.

[13] At the conclusion of the bail hearing, the Crown who had carriage of the matter that day indicated the following:

"So the onus is on the Crown to justify why this accused should be detained. I failed miserably in that regard, he should not, quite frankly. The question should be then is the Crown even going to proceed with this? It is not going to be me today that makes that decision, so the case will continue.

But the question then is what form of release should this man be on in anticipation of the matter still proceeding for whatever time it takes until that decision is made whether it is in the public interest or if there is a reasonable prospect of conviction; whether he should be released on terms…

Well, if we had this returnable within the week some domestic Crown could make a decision whether this is going to proceed. And if not, then this man will have suffered the indignity of an undertaking for that period of time, but that would make sense in my respectful…."

[14] Mr. Kocet was subsequently released on an undertaking which simply required him to attend court when required to do so.

Jocelyn Burton

[15] The matter proceeded to trial on September 14, 2015. The Crown called one witness; Ms. Burton. She testified that on July 3, she and Mr. Kocet had an argument which was blown out of proportion. They were yelling and one of her neighbours phoned the police. When the police eventually attended, they discussed the argument which took place on July 3. She was angry and upset, and told the officer that Mr. Kocet had assaulted her on July 3. She felt forced to give a statement, but it was not right. She attended the police station the following day and told police that the allegations that she made were not true. She spoke with the investigating officer, and he indicated that there was nothing that he could do; she should write to the Crown Attorney. She knew that Mr. Kocet would turn himself in pursuant to the arrest warrant, so she attended at the Crown Attorney's office on July 6 and provided the letter which indicated that the original allegations were not true.

[16] She became aware that Mr. Kocet had surrendered pursuant to the warrant, and that he was not being released from custody that day. She spoke with the Crown Attorney at bail court on July 7 and provided a letter indicating that her allegations were untrue. She returned to court on July 8 and testified at the bail hearing. The testimony which she gave at the bail hearing is true. Mr. Kocet never assaulted her. She lied to the police when she made the allegations of assault.

[17] Ms. Burton is still in a relationship with Mr. Kocet. She was subpoenaed by the Crown to testify at the trial. Between the time of the bail hearing and the date of trial, no one from the Crown Attorney's office ever contacted her to speak with her. The Victim Witness Assistance Program had telephoned her, and she indicated to them that she did not want the charge to proceed.

The Affidavit of Mr. Kocet

[18] On consent, the affidavit was accepted as direct evidence. The Crown chose not to cross-examine on the affidavit. Mr. Kocet is 40 years of age. He has a criminal record; the most recent being a conviction in 2007. He is employed full-time and is actively involved in parenting his children.

[19] The experience of being arrested pursuant to a false accusation and subsequently being held in custody was traumatic. He was detained in custody for two days and one night. While in custody, he witnessed violence, including seeing two men "punched out". He feared for his life and was severely anxious. He suffered financial losses involving two days wages while being held in custody; $515 in total. He has missed additional times attending court, and incurred continuing legal expenses related to the bail hearing and the trial. This experience has been frustrating and terrifying; the outstanding charges have led to uncertainty in his life. He feels angry because due to his refusal to plead guilty, he was held in custody longer than he would have been if he pled guilty to the charge.

POSITIONS OF THE PARTIES

The Defence

[20] Section 7 of the Charter provides the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice. The decision to proceed with charges laid by police is at the core of prosecutorial discretion and has traditionally been treated with deference by courts. However, the concept of prosecutorial discretion cannot shield the Crown from a failure to fulfill a constitutional duty. If a Crown decision breaches an accused's Charter rights, the fact that such a decision may be within prosecutorial discretion is irrelevant in assessing the breach.

[21] In this case, the Crown improperly exercised its discretion by proceeding to trial in the face of evidence which would not support a reasonable prospect of conviction. In addition, despite a screening position which did not call for custody on a guilty plea, the Crown refused to consent to Mr. Kocet's release on bail. That inconsistency effectively pressured Mr. Kocet to plead guilty in order to avoid spending time in custody.

[22] The Crown's actions deprived Mr. Kocet of his section 7 Charter rights.

The Crown

[23] The Crown was justified in its decision to oppose bail. In making such a decision, the Crown must consider a number of factors. Only one of those factors is the Crown position on sentencing. The Crown had clear cause for concern on the secondary grounds, given the criminal record of the accused and the serious allegations originally made by the complainant.

[24] The Crown was justified in its decision to proceed to trial. It was not a situation where the Crown had no evidence. The Crown had the original oral statement made by the complainant. Notwithstanding her subsequent recantations orally, in writing and later under oath, the complainant might have changed her evidence again at trial and testified that she was assaulted. The Crown could utilize section 9(2) of the Canada Evidence Act at trial in order to explore the veracity of the recantation.

[25] Prosecutorial discretion is not reviewable unless there is some basis upon which an abuse of process can be established. An award of costs is ordinarily based upon the behavioural conduct of the case, and may occasionally be based upon the tactical decisions of the Crown. An award of costs can never be based upon the exercise of prosecutorial discretion unless the decision in question amounts to an abuse of process or a breach of the accused's Charter rights.

APPLICABLE LEGAL PRINCIPLES

Considerations Relating to Interim Release

[26] In R. v. Brooks, [2001] O.R. 533, the court dealt with an application for review of a detention order. The accused was arrested on a number of offences and detained after a bail hearing. The court overturned the detention order. In doing so, Hill, J indicated the following at paragraphs 20 through 23:

"[20]…A person charged with a criminal offence and detained on arrest has the constitutional right not to be denied bail without just cause according to s. 11(e) of the Canadian Charter of Rights and Freedoms.

[21] In certain circumstances, this obliges an officer in charge to release an accused pursuant to s. 498 or s. 499 of the Code. Failure to consider such a release at all or to release in circumstances where such a disposition is clearly correct from an objective point of view, amounts to an abdication of legal responsibility and a Charter infringement. In this case, the police are not to be faulted in any fashion for not authorizing bail.

[22] Crown counsel are expected to exercise discretion to consent to bail in appropriate cases and to oppose release where justified. That discretion must be informed, fairly exercised, and respectful of prevailing jurisprudential authorities. Opposing bail in every case, or without exception where a particular crime is charged, or because of a victim's wishes without regard to individual liberty concerns of the arrestee, derogates from the prosecutor's role as a minister of justice and as a guardian of the civil rights of all persons.

[23] Because the police and the prosecution have significant discretion to exercise respecting the release of accused persons, the administration of criminal justice logically expects that these parties will not simply dump all bail decisions into contested hearings before the courts. Not only does this serve to choke the operation of the bail courts but, as said, the statutory and constitutional regime demands otherwise."

Review of Crown Decision Making

[27] The Supreme Court of Canada dealt with the issue of reviewing Crown decision-making in R. v. Anderson 2014 SCC 41. At paragraphs 35 and 36, the court stated the following:

"35 There are two distinct avenues for judicial review of Crown decision-making. The analysis will differ depending on which of the following is at issue: (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court.

36 All Crown decision making is reviewable for abuse of process. However, as I will explain, exercises of prosecutorial discretion are only reviewable for abuse of process. In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process."

[28] The Court went on to affirm that prosecutorial discretion is a necessary part of a properly functioning criminal justice system. The fundamental importance of prosecutorial discretion arises from its ability to advance the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as "ministers of justice". It is an indispensable part of the effective enforcement of criminal law.

[29] At paragraphs 39 and 40 of the decision, the court stated the following:

"39. In Krieger, this Court provided the following description of prosecutorial discretion:

"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

40. The Court went on to provide the following examples of prosecutorial discretion: whether to bring the prosecution of the charge laid by the police; whether to enter a stay of proceedings in either a private or public prosecution; whether to accept a guilty plea to a lesser charge; whether to withdraw from criminal proceedings altogether; and whether to take control of a private prosecution. The Court continued:

"Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e. the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once for the Attorney General has elected to enter into that forum."

[30] The Court made it clear that prosecutorial discretion is an expansive term that covers all decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. However, the Court went on to point out that care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The Crown has no discretion to breach the Charter rights of an accused. The Court indicated that prosecutorial discretion does not provide a shield to a Crown prosecutor who has failed to fill his or her constitutional obligations.

[31] The Court also discussed the standard of review for prosecutorial discretion. Prosecutorial discretion is entitled to considerable deference from a court. That flows from the doctrine of separation of powers as well as policies founded upon the efficiency of the criminal justice system. However, prosecutorial discretion is not immune from judicial oversight. It is reviewable for abuse of process. Abuse of process has been described in terms such as flagrant impropriety, Crown decisions which undermine the integrity of the judicial process or result in trial unfairness, or decisions made for improper motives or in bad faith. Abuse of process in this context refers to Crown conduct which is egregious and seriously compromises trial fairness and/or the integrity of the justice system. Prosecutorial discretion is reviewable solely for abuse of process.

[32] The following passage from paragraph 44 of the decision in R. v. M.(B.), 64 O.R. (3d) 299 describes the obligation on the Crown:

"I acknowledge that prosecutorial discretion is an essential feature of the criminal justice system, and the judges should be slow to second-guess the exercise of that discretion. The decision to proceed with a prosecution is a matter of Crown discretion, the exercise of which can properly be influenced by arguable differences of opinion about legal interpretation: see R. v. Veri, [2000] O.J. No. 384 … Arguable differences of opinion about the admissibility of evidence, or the credibility of potential witnesses may also properly influence the exercise of Crown discretion: see Reagan, supra. The Crown, however, cannot exercise its discretion in a manner that contravenes an accused's rights under the Charter …. The exercise of Crown discretion arbitrarily, capriciously, or for some improper motive may result in an abuse of process under s. 7…. As Binnie, J. put it in Reagan, supra, at paragraph 167, page 160 C.C.C., the corollary to the Crown's extensive discretionary powers is that they must be exercised fairly, with objectivity and dispassion. Where these features are lacking, corrective action may be necessary to protect the integrity of the criminal justice system. LeBel, J. similarly stated in the majority decision in Regan, at paragraph heating nine, page 135 C.C.C., that "objectivity and fairness is the ongoing responsibility of the Crown at every stage of the process". He noted that "objectivity requires that a rational assessment of facts be brought to bear in making decisions related to the case"."

[33] The burden of proof for establishing abuse of process lies on the complainant, who must prove it on a balance of probabilities. Requiring the complainant to establish an evidentiary foundation respects the presumption that prosecutorial discretion is exercised in good faith. The contents of a Crown policy or guideline may be relevant to consideration of a challenge to the exercise of prosecutorial discretion. While Crown policies and guidelines do not have the force of law, they are capable of informing the debate as to whether a Crown prosecutor's conduct was appropriate in particular circumstances.

Tactics and Conduct Before the Court

[34] In Anderson, supra, the Supreme Court of Canada confirmed that while deference is not owed to counsel who are behaving inappropriately in the courtroom, the adversarial system does accord a high degree of deference to the tactical decisions of counsel. Court should generally refrain from interfering with the conduct of the litigation before the court. In R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688 at paragraphs 36 and 37, the Supreme Court of Canada indicated the following:

"In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel… .[C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party… .

The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel. Of course, trial judges are still required to "make sure that the trial remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice": Lavallee, Rackel and Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 68."

[35] Crown decisions related to courtroom tactics and conduct may amount to an abuse of process, but a finding of abuse of process is not a precondition for judicial intervention on matters related to courtroom tactics and conduct.

Costs in Cases Related to Charter Violations

[36] In R. v. Tiffin, 2008 ONCA 306, [2008] O.J. No. 1525, LaForme J.A. of the Ontario Court of Appeal indicated that costs will not be routinely ordered in favour of accused persons whose Charter rights have been violated. The jurisdiction to award costs against the Crown as a remedy for a Charter breach is dependent upon cases involving Crown misconduct or something that is rare or unique that must at least result in something akin to an extreme hardship on an accused. As a general rule, costs will not be an appropriate and just Charter remedy in the absence of Crown misconduct.

[37] As indicated in R. v. M. (B.), 64 O.R. (3d) 299, cost awards are exceptional. The Crown should not be subjected to costs awards unfairly. The Crown should not be held to a standard of perfection. There must be circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution.

[38] As indicated, the onus of establishing a Charter breach is on the applicant, on a balance of probabilities. Similarly, the onus of establishing the appropriateness of a particular remedy under section 24(1) of the Charter is on the applicant.

Crown Policy Manual

[39] As indicated, Crown policies and guidelines do not have the force of law, but may be relevant to consideration of the challenge to the exercise of prosecutorial discretion. The Crown Policy Manual contains a section related to charge screening. That material was filed by the defence on this application. Among other things, the charge screening section of the Manual states:

"Every charge must be screened in accordance with the charge screening standards of "reasonable prospect of conviction" and "public interest". … The obligation to screen a charge is ongoing as new information is received by Crown counsel in preparation for and during the conduct of bail hearings, pre-trials, preliminary hearings, trials and appeals….

Reasonable Prospect of Conviction: When considering whether or not to continue the prosecution of a charge the first step is to determine if there is a reasonable prospect of conviction. This test must be applied to all cases. If the Crown determines there is no reasonable prospect of conviction, at any stage of the proceeding, then the prosecution of that charge must be discontinued.

The threshold test of "reasonable prospect of conviction" is objective. This standard is higher than a "prima facie" case that merely requires that there is evidence when a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require "a probability of conviction", that is, a conclusion that a conviction is more likely than not."

ANALYSIS

[40] Fulfilling the Crown's role as a "minister of justice" can be a difficult balancing act. The responsibility of Crown counsel is not the single-minded pursuit of convictions, but to make certain that justice is done. The role of prosecutor excludes any notion of winning or losing; his or her function is a matter of public duty. The role of Crown counsel in considering or carrying forward a prosecution is of the highest importance for the integrity of the criminal justice system.

[41] In this case, the applicant has lead evidence which establishes that the Crown, notwithstanding the substantial and obvious difficulties with this prosecution which were known to the Crown within the first few days of the charge being laid, determined that the prosecution should continue to trial. The applicant has met the threshold of evidentiary burden to cause the court to embark upon an inquiry into the reasons behind the exercise of that discretion. As indicated by the Ontario Court of Appeal in R. v. Delchev 2015 ONCA 381, [2015] O.J. No. 2710, that means that the Crown may be required to provide reasons justifying its decision.

[42] The Crown made the decision not to call evidence on the Charter application, nor to cross-examine the applicant on his affidavit evidence. There is nothing in the record which suggests that the Crown took any steps to evaluate or attempt to strengthen its case between the date of the bail hearing and the trial. I accept Ms. Burton's evidence that she was not contacted by the Crown's office during that interval. I conclude that between the date of the bail hearing and the trial, the Crown did not, in any meaningful way, consider the viability of the prosecution given the obvious difficulties in the evidence which would be expected at trial.

[43] The decision to continue with the prosecution involved the exercise of prosecutorial discretion. Accordingly, it is reviewable regarding a potential contravention of the rights of the accused under section 7 of the Charter.

[44] The investigating officer received an oral report, which, if believed, could form the basis for charge. A very short while later, the complainant retracted the allegation, indicating that she had made it up. She provided the police with a statement in writing retracting her allegations, indicating that she had fabricated them. The police immediately provided that information to the Crown Attorney's office. The complainant then attended the bail court where the accused was making his initial appearance, and was available to speak with the Crown Attorney. The following day at a contested bail hearing in which the Crown initially opposed release, she testified under oath that the allegations which she had made to the police were untrue and had been fabricated. At that point, the Crown Attorney with carriage of the bail hearing stated the obvious; that a domestic Crown would have to review the charge to determine whether the Crown would proceed, given the issues regarding reasonable prospect of conviction.

[45] As indicated, the Crown policy manual may be relevant to consideration of whether the Crown's conduct was appropriate in the circumstances. The manual clearly provides that the first step in determining whether to continue the prosecution of a charge in every case is a consideration of whether there is a reasonable prospect of conviction. The threshold is higher than a prima facie case. In spite of these obvious issues, the Crown apparently did nothing in furtherance of its ongoing obligation to continue screening this case.

[46] In my view, at the point that Ms. Burton attended police headquarters and provided a written statement to the police indicating that she had fabricated the allegations, there was no longer a reasonable prospect of conviction. Two days later, she testified under oath at the bail hearing that she had fabricated the allegations. Given that testimony, again, there was no reasonable prospect of a conviction. Notwithstanding that, the Crown continued the prosecution, and set the matter for trial. The Crown apparently did nothing to address the obvious issues related to proving the charge. On the day of trial, not surprisingly, Ms. Burton attended and again testified under oath that she had fabricated the allegations.

[47] One of the justifications offered by the Crown for continuing with the prosecution was the possibility of the Crown utilizing section 9(2) of the Canada Evidence Act to probe the circumstances surrounding the recantation. The Crown made a cursory attempt to do so, and then abandoned the application, and invited the court to enter an acquittal. Another justification offered for the Crown continuing with prosecution was the possibility that Ms. Burton might have changed her evidence again at trial. I make two observations related to that justification. First, the Crown had absolutely no expectation that Ms. Burton would change her evidence at trial. She had recanted the original allegations orally, in writing and then under oath. The Crown did not attempt to speak with her in the interval between the bail hearing and the trial. Accordingly, the Crown could not have any expectation that she would change her position and again make allegations of assault. Secondly, at that point, even if she had changed her position, given the earlier statement in writing and sworn testimony, the change would not have mattered. In the face of those inconsistencies, the Crown was not going to obtain a conviction. Indeed, in its role as "minister of justice", it is questionable whether the Crown should have been attempting to obtain a conviction based on that evidence.

[48] In my view, in the face of the evidence which was available to the Crown, the decision to proceed with the prosecution was not made objectively with dispassion. Put differently, a rational assessment of the facts was not brought to bear in making the decision to proceed to trial. A rational assessment of the facts would have resulted in this prosecution ending shortly after the bail hearing. Notwithstanding that, and the ongoing obligation of the Crown, nothing was done other than single-mindedly setting the matter for trial, where the evidence unfolded exactly as one would expect. Midway through trial, the Crown invited the court to make a finding of not guilty. The conduct of this prosecution in that fashion constituted a marked and unacceptable departure from the reasonable standards expected of the prosecution. It illustrated a failure to meet the requirements of objectivity and fairness. Accordingly, the Crown exercised its discretion in a manner which contravened Mr. Kocet's rights under Section 7 of the Charter.

[49] In determining the appropriate remedy for the Charter breach, I am also mindful of the position taken by the Crown with respect to judicial interim release. Originally, the Crown opposed release, despite screening the matter for a noncustodial disposition on a guilty plea. The Crown did so knowing that the complainant had already recanted her allegations. The justification offered by the Crown is one of serious concerns regarding the secondary grounds. That is difficult to justify based upon Mr. Burton's situation. Mr. Burton was married, involved with his children and working full time. The fact that he had a conviction for breaching a court order in 2007 would be a minor consideration given that backdrop. Given the presumption of innocence, and the facts known to the Crown, it is difficult to conclude that the Crown position with respect to bail was informed, fairly exercised and respectful of the prevailing jurisprudential authorities, as required by the decision in R. v. Brooks, supra.

CONCLUSIONS

[50] Recognizing that costs awards against the Crown are exceptional, in this case, in my view, the applicant has established on a balance of probabilities, both the breach of Section 7 of the Charter, and the appropriateness of a costs award in this case. There will be an order of costs payable by the Crown to Mr. Kocet. I invite counsel for Mr. Kocet to serve and file submissions in writing regarding the quantum of costs sought by the applicant.

Released: December 16, 2015

Signed: "Justice A. Thomas McKay"