Ontario Court of Justice

Date: January 6, 2022

Between: Her Majesty the Queen — and — Noman Yousify

Ruling on an Application for Costs Against the Crown

Before: Justice W. B. Horkins

Heard on: November 10, 2021 Reasons released on: January 6, 2022

Counsel: Christine Jenkins, for the Crown Aman Patel, for the accused

W.B. Horkins, J.:

[1] This is an application for costs against the Crown.

[2] This issue was first raised by the accused as part of a pre-trial disclosure application and a subsequent application to adjourn the original trial date.

[3] The disclosure issue was resolved, the trial was rescheduled, and this issue was deferred to be considered following the completion of the trial.

[4] The trial is now finished. The accused has been convicted and sentenced on theft and assault charges. An accompanying allegation of sexual assault was dismissed. The accused now pursues his costs application.

[5] The pre-trial disclosure issue that triggers this costs application concerns the delayed, and then redacted, disclosure of the complainant’s 911 call made a few days after the theft of her computer.

[6] It took a year for the accused to obtain disclosure of the 911 call. When it was ultimately disclosed the audio was significantly redacted removing all content concerning the complainant’s self described emotional and mental health issues. The Crown assigned to the file refused to provide an unredacted copy. The accused brought a formal disclosure application. The Office of the Crown Attorney then reconsidered the matter and disclosed the unredacted copy. By the time the unredacted copy was provided and reviewed by counsel for the accused it had become necessary to allow a lengthy adjournment of the scheduled start of the trial.

[7] The accused seeks costs as compensation for the time, effort and delays associated with resolving this disclosure dispute.

The Law

Costs Against the Crown

[8] The jurisdiction for awarding costs in criminal matters is extremely narrow and the threshold is very high. (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 SCR 575, R. v. Leyshon-Hughes, 2009 ONCA 16 and R. v. Tiffin, 2008 ONCA 306).

[9] Costs against the Crown are “an exceptional or remarkable event”. The reason for restraint in ordering costs in the criminal context is that the Crown must not be unduly deterred from the reasonable exercise of its quasi-judicial duties exercised in good faith in the public interest. (R. v. Singh, 2016 ONCA 108, R v Armstrong, 2006 ONSC 12422).

[10] The Crown has an obligation to obtain and disclose all relevant information gathered in a criminal investigation, whether admissible at trial or not. This obligation is held jointly by the Crown and the police. The fruits of a criminal investigation are not the property of the prosecution for use in securing a conviction. Full disclosure is to be provided to the accused to ensure, to the greatest degree possible, that justice is done. (R. v. Stinchcombe, 1991 SCC 45, [1991] 3 SCR 326).

[11] Not only must full disclosure be made by the prosecution, but it must be made in a timely fashion. (R. v. Egger, 1993 SCC 98, [1993] 2 SCR 451). The accused is entitled to disclosure in sufficient time to properly prepare for trial.

[12] In exceptional circumstances the Crown may be justified in withholding disclosure material, for instance to protect the integrity of an ongoing investigation or to protect claims of privilege or privacy interests. However, when disclosure is denied or delayed the burden is on the Crown to justify such conduct.

[13] When issues arise concerning the decision of the Crown to withhold disclosure material, those decisions are reviewable by the Court.

[14] Costs as a remedy for a failure to provide timely disclosure requires that there be “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. (R. v. Singh ibid., R. v. Henkel, 2003 ABCA 23).

[15] In Singh the Court made it clear that inadvertent errors involving the Crown’s disclosure obligations will not routinely justify an award of costs absent extreme hardship to the accused.

[38] … 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.

[16] In Singh the Court also provided guidance for assessing what degree of “departure” from “reasonable” conduct will trigger an entitlement to costs against the Crown.

[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 ONCA 58, 271 OAC 77, at paras. 29-31; and careless use of a firearm in R. v. Gosset, 1993 SCC 62, [1993] 3 S.C.R. 76, at pp. 93-94. In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, 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 SCC 26, [2012] 2 S.C.R. 60, 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: R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, 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.

[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 SCC 24, [2015] 2 S.C.R. 214, 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.

Factual Context of the Issue

[17] The facts are not complicated, however an understanding of the context in which the costs issue arises is important.

[18] In late 2017 the accused and the complainant met and were involved in a brief but intense and intimate relationship. The relationship ended with the accused stealing the complainant’s personal computer and disappearing. The accused was charged with two counts of assault, theft of the computer and a charge of sexual assault. The complainant made a 911 call reporting the theft and then went to the police and was formally interviewed. During her initial police interview concerning the theft of her computer she disclosed, as part of the narrative, the two assaults and an alleged sexual assault.

[19] At the outset of the trial the accused plead guilty to the theft of the computer. The evidence at trial clearly established the two physical assaults. There was reasonable doubt with respect to the sexual assault allegation and it was dismissed.

The Pre-trial Disclosure Issue

[20] The pre-trial disclosure issue that triggers this costs application concerns the delayed, and redacted, disclosure of the complainant’s 911 call.

[21] The events underlying the charges against the accused occurred between December 6th and 12th, 2017. On December 17, 2017, the complainant called 911 to report the theft of her computer. The accused was charged on January 8th, 2018. A copy of the 911 call was not provided to the accused until a year later, in January 2019. The copy of the call provided by the Toronto Police Service to the Crown for disclosure to the accused was significantly redacted. Crown counsel assigned to the file refused to disclose an unredacted copy. Counsel for the accused then had to prepare and file a formal disclosure application with supporting materials seeking an unredacted copy of the call. Upon receipt of the formal application material the Crown Attorney’s office reviewed the matter and decided to produce the unredacted copy.

[22] The halting chronology of the intake process of this case illustrates why this issue arose only at the eleventh hour with respect to the scheduled trial date. The accused was arrested on January 8th, 2018. The first judicial pre-trial was about four months later, on April 27th. The 911 call had not yet been ordered for disclosure. The Crown was asked to order the 911 for disclosure and did so on May 3rd. Despite this request from the Crown’s office, it was a full eight months later, in December, that the police provided the Crown with the audio recording of the 911 call. The copy provided, and then disclosed to the accused, was significantly redacted. When counsel for the accused reviewed the 911 recording on January 23, 2019, it became quickly apparent to him that the content was significantly redacted and so on February 5th he requested an unredacted copy. On February 7th the Crown refused his request. Counsel unsuccessfully renewed his request the following day and then on February 18th filed a formal application for disclosure of an unredacted copy of the 911 call. The office of the Crown Attorney reconsidered the matter and on February 20th agreed to disclose the unredacted 911 call. On February 28th the accused brought an application for an adjournment of the scheduled March 6th trial date based on a need to seek expert advice relating to concerns with certain aspects of the complainant’s emotional and mental health status as revealed in the previously redacted portions of the 911 call. The trial was adjourned to a date in November 2019.

The Positions of the Parties

[23] The accused relies on reference to paragraphs 55 – 60 of his pre-trial disclosure application materials. Those paragraphs claim that the Crown was “unacceptably negligent in fulfilling its disclosure obligation” and so had “needlessly forced” the issue to be litigated. Counsel had to prepare and file a detailed application with a supporting record to force a resolution the disclosure issue.

[24] The Crown has provided an extensive and very useful factum containing the Crown’s submissions, supporting exhibits, and a catalogue of several relevant case reports.

[25] The Crown takes the position that the longstanding practice of not having 911 calls ordered until after a trial date is scheduled “prevents these files from delaying other initial disclosure”. There are limited resources available to manage the volume of disclosure materials that the police must prepare and provide to the Crown for disclosure purposes. Removing the preparation of disclosure copies of 911 calls in the multitude of cases that will be resolved prior to trial dates being set was intended to allow those limited resources to be applied most efficiently.

[26] The Crown submits that the redaction of the 911 call by the Toronto Police Service in this case was reasonable conduct, as was the Crown’s initial refusal to produce an unredacted copy of the call. The redaction was done in good faith in compliance with a growing awareness of the need for the judicial system to protect vulnerable witnesses from unwarranted invasions of their privacy. This sensitivity to a complainant’s sphere of personal dignity and expectation of privacy is recognized as particularly important in cases of alleged sexual assault.

[27] Without conceding the issue, the Crown submits that, even if the Crown was in error in its initial refusal to provide the unredacted material, this conduct falls far short of amounting to a “marked and unacceptable departure from the reasonable standards expected of the prosecution”, the threshold at which the accused’s entitlement to costs may be triggered.

Analysis

[28] The accused’s application fails for the following reasons.

[29] The unacceptably long delay in producing this 911 call was a systemic failure of the Crown’s disclosure obligation. The 911 call was obviously important disclosure material. The call is the first recorded articulation of the complainant’s allegations against the accused and was made at a point in time relatively contemporaneous to the events in question. However, this failure clearly did not result from a case specific decision by the Crown. The long-standing express practice of the Crown Attorney’s office at the time was to deliberately not order preparation of any 911 calls in any case until after a trial date was set.

[30] This practice of routinely delaying preparation of 911 calls in and of itself cannot be characterized as “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. The practice was the product of a flawed, but principled, decision, the purpose of which was to allocate limited resources in what was then believed to be the most effective fashion. That now abandoned blanket approach, in and of itself, does not amount to “a marked and unacceptable departure from the reasonable standards expected of the prosecution”.

[31] There is certainly room in this case to be critical of the overall performance of the Crown in how its disclosure obligations were undertaken.

[32] The importance of the production of the 911 call in this case was recognized at a relatively early judicial pre-trial conference and it was immediately ordered. There was clearly no effective follow up to that request and the 911 call was in fact not prepared, or disclosed, for several more months.

[33] The failure of the Crown’s office to follow up on the initial pre-trial request for the 911 call was a failure that has not been adequately explained. However, there is no basis to think that this inaction was intentional, and I conclude that this failure in the Crown’s disclosure obligation was an inadvertent oversight. That inadvertent failure, in all the circumstances of this case, cannot be characterized as “a marked and unacceptable departure from the reasonable standards expected of the prosecution”.

[34] When the Crown’s office eventually received the 911 call it had already been redacted by Police Services. The redacted portions of the call concerned the complainant’s various self described emotional and mental health issues. The redacted material should probably have been simply flagged by the police for consideration by the Crown attorney’s office, however, it was not unreasonable for the police to redact the sensitive content on their own initiative. In recent years there has been a welcome progressive sensitivity to protecting the personal dignity and privacy interests of witnesses, particularly complainants in sexual assault cases. This redaction was clearly done in good faith in the spirit of compliance with those laudable considerations.

[35] At trial the complainant was quite open and transparent with respect to her various mixed emotional and mental health issues and how they might have affected her memory of the events. Having heard her evidence at trial and observed the sometimes unusual demeanour of the complainant in the courtroom, I can confirm that those issues were, to a limited extent, relevant to a full assessment of her reliability as a witness. With the benefit of hindsight, it is crystal clear that the accused should properly have had full disclosure of the redacted material in order to fully understand the case that he would have to meet at trial.

[36] While acknowledging the importance of this material and the failure to provide it fully and in a timely manner, I am still far from being persuaded that the conduct of the Crown in this case was so unreasonable as to be characterized as “a marked and unacceptable departure from the reasonable standards expected of the prosecution”.

[37] Although the Crown had to be motivated into reconsidering the initial refusal to disclose the material by the filing of a formal application, the Crown did then act swiftly in agreeing to provide the unredacted copy.

[38] Without question the necessary time and trouble spent resolving the disclosure issue in this case resulted in increased and arguably unnecessary costs to the accused, however, I am not persuaded that, in all the circumstances, the accused suffered “extreme hardship” or “unjustified court proceedings” to an extent that should trigger compensation or sanctions against the Crown.

[39] Costs against the Crown in Criminal cases will be rare. As Himel J. stated in Armstrong at paragraph 15,

Costs may be awarded in a criminal proceeding as a sanction in the rarest of cases to compensate a party who has suffered extreme hardship as a result of unjustified court proceedings.

[40] And, as the Court of Appeal stated in Singh, at paragraph 38,

“… to justify costs against the Crown the triggering conduct must be “ 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.”

[41] The jurisdiction for awarding costs in criminal matters is extremely narrow and the threshold is very high.

[42] I am not persuaded that either the nature of the Crown conduct in this case nor the impact on the accused is of a nature, or of a sufficient degree, to warrant sanctions or compensation by way of costs against the Crown.

[43] The Application is dismissed.

Released on January 6, 2022 Justice W.B. Horkins