Ontario Court of Justice

Date: 2016-06-03 Court File No.: London 15-9627

Between: Her Majesty the Queen — and — Richard Kocet

Before: Justice A. Thomas McKay

Heard on: April 27, 2016

Reasons for Judgment released on: June 3, 2016

Counsel:

• Mr. K. Gowdey — 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, alleged to have been committed on his domestic partner in the early morning hours of July 4, 2015. A neighbour heard the couple arguing and telephoned the police. When the police arrived, Mr. Kocet was no longer present. His spouse, Ms. Burton, indicated to police that Mr. Kocet was intoxicated, they argued, and he grabbed her by the front of her shirt with one hand and pulled her to the ground. In doing so, his hand struck her face under her right eye. The police officer observed a slight bruising to the bottom of her right eye and a small scratch on her left ankle. On that basis, the police made the decision to lay the charge and obtain an arrest warrant.

[2] On July 6, 2015, family members of Ms. Burton advised the police that Ms. Burton wished to withdraw her allegations. On that same date, Ms. Burton attended at police headquarters and indicated orally and in writing that she had fabricated the allegations of assault. The police forwarded a memo to the Crown Attorney's office on the same date advising the Crown of that information. On July 7, 2015, Mr. Kocet attended at police headquarters in order to surrender himself pursuant to the outstanding arrest warrant. He was taken into custody. That morning, the Crown screened the charge for a non-custodial disposition on a guilty plea. Notwithstanding that, the Crown opposed interim release of Mr. Kocet on bail. On July 7, 2015, with Ms. Burton present in court and available to speak with the Crown, the matter was adjourned to July 8 for a contested bail hearing.

[3] On July 8, 2015, Ms. Burton testified under oath at the bail hearing that she had fabricated the assault allegations. At the conclusion of the bail hearing, Mr. Kocet was released on an undertaking. The Crown with carriage of the bail hearing indicated that a domestic Crown would have to review the allegations and consider the concept of reasonable prospect of conviction. There is nothing in the evidentiary record which suggests that the Crown ever did so. The matter was set for trial. The defence filed an Application under the Charter of Rights which maintained that the decision to proceed with the prosecution constituted a violation of Mr. Kocet's section 7 Charter rights. The Application requested an order of costs against the Crown.

[4] At the trial, the Crown called one witness, Ms. Burton. She testified that her original complaint to the police had been fabricated. The Crown eventually invited the Court to acquit Mr. Kocet. The Crown then requested an adjournment of the argument related to the issues raised in the Charter Application for costs. The Crown pointed out that, although the Application was served within the timeframe stipulated by the Court Rules, the defence factum and casebook was filed only 10 days before the trial date. The Crown maintained that it needed additional time in order to file appropriate responding material. The matter was adjourned to argue the issues related to the Charter Application. On the return date, the Crown indicated that it was not filing any material related to the Application. On December 16, 2015, this Court released written reasons for decision in which it awarded costs against the Crown for a breach of Mr. Kocet's rights under section 7 of the Charter. At the request of counsel, the matter was adjourned in order to address the quantum of costs which would be awarded. The matter was adjourned on several occasions as counsel reviewed the impact of recent decisions of the Ontario Court of Appeal in R. v. Singh, 2016 ONCA 108 and R. v. Ferncan Developments Inc., 2016 ONCA 269.

[5] These reasons outline the quantum of costs awarded against the Crown, and the rationale therefore.

THE LEGAL PRINCIPLES

[6] The recent decisions of the Ontario Court of Appeal in Singh and Ferncan have clarified the law with respect to costs awards against the Crown in criminal cases. Costs awards, in the rare circumstances where they are appropriate, are integrally connected to the court's control of its trial process, and are intended as a means of disciplining and discouraging behaviour. There is a compensatory element to such awards, but the concepts related to costs awarded in civil litigation do not apply in the criminal context. The reasons for costs awards in those two systems are different. The Crown in a criminal case is not an ordinary litigant, and an award of costs against the Crown in the criminal context does not focus on the indemnity. In quantifying a costs award against the Crown in a criminal context, the court must exercise discretion having regard for the fact that the funds are coming from the public purse and that the purpose of the costs award against the Crown in a criminal context is to provide a reasonable portion of the cost that an accused incurs to secure his or her Charter rights.

POSITIONS OF THE PARTIES

The Crown

[7] At the hearing related to the quantum of costs, the Crown acknowledged that the conduct of the Crown in this case constituted a marked and substantial departure from a reasonable standard expected of the prosecution. The Crown acknowledged that its approach was misguided and that there was a consistent theme from the time of the bail hearing until the time of the costs award of failing to meet the standard expected of the Crown.

[8] With that acknowledgement, the Crown referenced the principles involved in costs awards against the Crown in the criminal context as outlined by the Ontario Court of Appeal. The Crown indicated that as a result of the ruling in this case, the Middlesex County Crown's office met as a group in order to review policies and procedures and issues related to recanting witnesses. Historically, the London Police Service has not taken KGB statements in domestic violence cases. That issue had been the subject of ongoing discussions between the Crown's office and the police service. This ruling focused those discussions, and led to a commitment on the part of the London Police Service to begin taking KGB statements in domestic violence cases. Those steps are an acknowledgement by the Crown of its need to meet its obligations to the court and to the public. Accordingly, any monetary costs award should be modest in order to reflect the relevant legal principles.

The Defence

[9] The defence emphasized the seriousness of the failure of the Crown to meet a reasonable standard, and its impact upon Mr. Kocet. As a result of the refusal to consent to his release, Mr. Kocet spent time in custody prior to completion of the contested bail hearing on July 8, 2015. Mr. Kocet was required to be absent from work while in custody, while attending the trial, and while attending the subsequent hearing on the costs issue. That resulted in a loss of wages in the amount of $2,575. As part of the Application, Mr. Kocet incurred expenses of $253.80 for transcripts of the bail hearing. As a result of the contested bail hearing, the trial and the Charter Application, the hearing of which was delayed at the request of the Crown in order to allow it to file material, which, ultimately, it never filed, Mr. Kocet incurred legal fees in the amount of $18,890. The defence takes the position that all of those items comprise costs that Mr. Kocet should essentially be reimbursed for. That totals $21,718.80.

ANALYSIS

[10] It is noteworthy that the Middlesex County Crown's office has attempted to take meaningful steps to address its failure in this case. The meeting to review policies and procedures is a significant attempt to address the issue. Similarly, obtaining a commitment from London Police Service to obtain KGB statements in domestic violence cases is a meaningful and overdue step which will assist the Crown's office and ultimately the court in dealing with those types of difficult cases. However, I am certain that all of that is of little comfort to Mr. Kocet, given his difficulties arising from the breach of his Charter rights in this case.

[11] While acknowledging the steps taken by the Crown subsequent to the costs ruling, the applicable legal principles make it clear that the awarding of costs in appropriate cases is an important means of controlling the court's trial process. The decision as to quantum is a discretionary exercise which should result in a meaningful costs award focused upon disciplining and deterring the breach of the Charter rights of the accused, while providing a reasonable portion of the costs incurred by the accused in defence of his Charter rights.

[12] I note that the legal fees incurred by Mr. Kocet are reasonable, given the nature of the proceedings, the issues involved, the time spent on the litigation, and the fact that he was represented by experienced counsel. However, as the appellate authorities point out, the court is not to focus on the indemnification of all of Mr. Kocet's legal costs. Nor in my view, should the court be focused on individual headings such as lost wages.

[13] Mr. Kocet's Charter rights were violated in this case. The violation took place over a period of months, as the Crown was engaged in an ongoing failure to meet a reasonable standard. In my view, a meaningful award of costs against the Crown which provides a reasonable portion of the costs incurred by Mr. Kocet, requires payment of the sum of $10,000 to Mr. Kocet by the Crown.

Released: June 3, 2016

Signed: Justice A. Thomas McKay