COURT FILE NO.: CR-10-129-00MO

DATE: 20120703

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JAMES EMMS and VERNON MARTIN Applicants

L. Saunders, for the Crown

B. Bond, for the Respondent Emms
C. Rippell, for the Respondent Martin

HEARD: June 19 and 20, 2012

COSTS ENDORSEMENT

STONG J.

I. INTRODUCTION

1## I. INTRODUCTION

James Emms and Vernon Martin (“the Applicants”) faced criminal charges for which they had been committed to trial after a preliminary hearing conducted in the Ontario Court of Justice before Justice Douglas, an experienced member of that court. It was after hearing from the alleged victims and from banking representatives that the presiding Justice found that there was sufficient evidence to order and so did order both Applicants to stand trial.

2Sometime later however, on August 26, 2011, the criminal charges against the Applicants were ordered stayed by this Court as a result of the violation of their Sec 11 (b) Charter rights. The allegations against the Applicants have not been tried. Nor, based on the committal for trial, can it be said that the prosecution of the charges was unmeritorious.

II. ISSUES

3## II. ISSUES

Both Applicants seek an award of costs specifically against the Crown. The costs they submit were incurred as a result of and directly attributable to the delays which triggered their Charter rights violation. The Applicants seek a remedy pursuant to Sec 24 (1) of the Charter or pursuant to the court’s own inherent jurisdiction in circumstances where there has been an abuse of process.

4While costs awards in favour of the winning party are a familiar feature of civil proceedings, jurisprudence has rendered such awards to be rare in criminal cases. However there is no doubt based on existing legal authority that in certain circumstances in criminal proceedings a costs award may be made against the Crown whether as a remedy under Sec 24 (1) of the Charter or pursuant to the court’s own inherent jurisdiction. As the Court of Appeal for Ontario held in R v.Tiffin (2008) 2008 ONCA 306 , 232 CCC (3d) 303, at paragraph 94 , in circumstances of a criminal prosecution there are essentially two instances when costs may be awarded:

(1) in cases of misconduct by the Crown; and

(2) in other exceptional circumstances where fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation.

5In paragraph 96 of the same report, the Court holds that the Crown cannot be held for costs for misconduct of other parties such as witnesses or investigative agencies unless the Crown has participated in the misconduct.

6The Nova Scotia Court of Appeal in R v. LeBlanc , 1999 NSCA 170 at paragraph 16 held:

What has happened in this case is really an attempt to obtain damages for costs in a criminal matter instead of commencing a civil action against the RCMP. Even if a Charter breach had been found against the RCMP, a breach by the law enforcement agency should not be attributed to the Crown unless the Crown was a party to the breach. (The emphasis is mine)

7I will deal with the issues in turn.

(a) Misconduct by the Crown

8### Misconduct by the Crown

The prosecution’s own misconduct may attract a cost sanction in criminal proceedings where, for example, its actions go well beyond inadvertence, or carelessness and amount to oppressive or otherwise improper conduct. In addition, a cost order will not be made against the Crown for misconduct of other parties, such as witnesses or investigative agencies, unless the Crown has participated in the misconduct: R v. Tiffin supra at paragraph 87, or unless the Crown was a party to the breach: R v. Le Blanc supra.

9Whether seen as a remedy under Sec 24(1) of the Charter or an exercise or the Court’s own inherent jurisdiction, such cost awards, at a minimum, are restricted to circumstances of “a marked and unacceptable departure from the reasonable standards expected of the prosecution”: R v. 974649 Ontario Inc 2001 SCC 81 , [2001] 3 SCR 575 at para. 87 .

(b) Other Exceptional Circumstances Not Involving Crown Misconduct

10### Other Exceptional Circumstances Not Involving Crown Misconduct

Costs may also be awarded in other exceptional circumstances where fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation. While the term “exceptional circumstances” has not been specifically defined, it requires more than a case of general importance, or that a person has suffered losses for which he or she is not responsible. As the Court of Appeal for Ontario noted in R. v Foster 2006 38732 (ON CA) , 215 CCC (3d) 59 at paragraph 63 , it is the court’s inherent power to protect against abuse of process that underlies the definition of exceptional circumstances.

11The jurisdiction to award costs against the Crown as a 24(1) remedy for a Charter breach in cases not involving Crown misconduct requires something that is “rare” or “unique” that “must at least result in something akin to an extreme hardship on the defendant”. As a general rule, costs claimed by an accused, absent Crown misconduct, will not be an “appropriate or just” Charter remedy: R v Tiffin supra paragraph 98. In these proceedings the Applicants have framed their applications in terms of misconduct by the Crown or at least in terms of an informed acquiescence by the Crown to the misconduct of the investigative agency and finally in terms of the fairness requirement that R v Tiffin stands for.

III. ALLEGATIONS OF MISCONDUCT and FINDINGS

12## III. ALLEGATIONS OF MISCONDUCT and FINDINGS

The threshold for the issue of costs against the Crown is whether there has been a “marked and unacceptable departure from the reasonable standards expected of the prosecution”.

13In assessing whether that threshold is met, the Crown's conduct has to be tantamount to being unfair, un-objective, manipulative, disruptive or even high handed.

(a) Late and illegible disclosure

14### Late and illegible disclosure

In support of their applications the Applicants rely upon the weaknesses of the investigating officer, Officer Chorley’s notes, more particularly their late delivery and their illegibility. Mr. Rippell on behalf of his client, James Emms, submits that Officer Chorley failed to take notes consistent with the minimum standards required of police officers in that the notes were not legible; that there was no indication prior to the officer being cross-examined during the 11 (b) motion for Charter relief that there either were or even possibly were additional notes in an evidence storage space that had not yet been disclosed; that it was revealed at that time that there were several hundred pages of disclosure that had not been disclosed; that some of Officer Chorley’s original notes went missing; that even after those notes were located more notes were found in a police property room.

15It is argued on behalf of the Applicants that Officer Chorley, as the investigating officer, demonstrated a blatant and wanton disregard for the applicant's right to disclosure by failing to provide all the notes he made during his investigation of these matters. In his factum on this costs application, Mr Rippell further elaborates on the issues with Officer Chorley's notes, and at the second bullet under his paragraph 23, states that the problem with the officer's notes has been a live issue since the charges were laid, but neither the Crown nor defence counsel were ever alerted to the existence of the missing notes. He goes on to say they were only discovered fortuitously as the issue developed before this court during the pretrial motions.

16It has been agreed upon between Counsel that about a six-month gap in Officer Chorley's notes was identified by Mr. Miller, who was Mr Emms’ previous counsel. Mr Miller raised it with the Crown, Ms Bhangu. Then Mr Rippell raised it. There is no allegation that Ms Bhangu did not ask Officer Chorley about it on each occasion but the answer was there was nothing else to give. However the issue was raised by counsel.

17Notwithstanding the existence of a 6 month gap in the investigating officer’s notes, about which defence counsel had made inquiries, there is the concession in at least Mr Emms’ factum that neither Crown nor defence were aware of the existence of any outstanding notes until Officer Chorley was cross examined on the 11(b) Charter breach application. That concession is consistent with and, in so far as it goes, is capable of corroborating the Crown’s position that the Crown had no part to play in terms of either the discovery that there were a quantity of notes made by the officer that hadn't been disclosed, or in the fact that that they had not been disclosed. That concession bears directly as well on the Applicants’ position and substantially weakens the submission that given all the circumstances, the Crown, Ms Bhangu, had an obligation to do more than make an enquiry of the investigating officer and then rely on his response to her enquiry.

18The failure in these proceedings boils down to the involvement and behaviour of Officer Chorley and his note taking and making them available to the defence; in other words, his exceedingly sloppy, bordering on the reckless approach to his responsibility to produce material so that the Crown could then disclose it to the defence.

19For the Crown on this application, not being aware of existing undisclosed notes is not the same as being obstreperous or reluctant in their production or out rightly refusing to produce them. Relying on information from the lead investigator is not being arrogant, cavalier, repressive or wilfully disruptive, nor is it being dismissive or uncooperative. There is no evidence to even suggest that there was a either a deliberate or uninformed attempt on the part of the Crown to withhold disclosure from the defence or to act in any reprehensible way with respect to the disclosure of the notes in order to disadvantage the defence.

20In fact when the notes were discovered, the evidence is to the contrary. It became apparent during the course of the pretrial applications before this Court in early January 2011, that notes were missing when Mr Rippell, noticed a diagram in one of Constable Chorley's notebooks that he didn't recognize. It immediately became apparent that notes were missing.

21Continued cross-examination of Officer Chorley during the pretrial applications revealed that his notebooks were located in the property vault at the Barrie Police station, a secured location to which the Crown has no ready access. As is the usual case, the Crown depends upon the police to respond to requests for disclosure and to forward all notes relative to the investigation, and thus is left little, although unsuspecting, choice but to accept the police assertion that everything has been produced.

22Confronted with such a turn of events, Ms Bhangu, the Crown in this case, arranged for another police officer of the Barrie Police Service, Officer Langdon, to search the property vault and see if there was anything more. It can hardly be said that the Crown stood idly by and did nothing to address disclosure deficiencies as they were identified. Rather, the Crown took a leadership role and tried to identify ways by which the disclosure, as it was being presented by the police, was able to be organized and interpreted in such a way that it could be digested by the defence. The Crown arranged to have the notes transcribed so they could be more legible for the parties.

23As conceded in Mr Emms’ factum, the Crown did not know about these notes until they were discovered during the cross examination of Officer Chorley at the 11(b) Charter application. Further the Crown's ability to do more was limited by the fact that the Crown is dependent upon the police in such circumstances, that is, the Crown is to a very significant degree dependent upon other agencies that it cannot control. Precisely this sort of situation.

24As noted above, while the notes were not disclosed in a timely way and when disclosed were illegible, upon defence complaint about their illegibility the Crown arranged with the Barrie Police Service to have them transcribed. When that arrangement was not keeping up with expectations the Crown then promptly paid for a certified court reporter to transcribe the notes.

25That Officer Chorley appeared to be oblivious to his disclosure obligations and showed a wanton and reckless disregard for the Applicants’ Charter protected interests, can hardly, in the circumstances, be visited upon the Crown or be relegated to be Crown participation in the misconduct.

26On the issue of late and illegible disclosure, I am satisfied that there has been no marked or unacceptable departure from the reasonable standards expected of the prosecution. The Crown was neither a party to the breach of disclosure protocol nor did it participate in the wanton and reckless disregard by the investigating officer, Officer Chorley, of the Applicants’ protected Charter interests.

27I am likewise satisfied on this issue that no exceptional circumstances exist where fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation.

(b) Failure of the Crown in its Obligations to the Administration of Justice Arising out of its Own Witness’ Perjury

28In R v. McNeil 2009 SCC 3 , [2009] S.C.J. No. 3 the Supreme Court of Canada held a paragraph 48:

Failure of the Crown in its Obligations to the Administration of Justice Arising out of its Own Witness’ Perjury

… the suggestion that all state authorities constitute a single entity is untenable and unworkable. In order to fulfill its Stinchcombe disclosure obligation, the prosecuting Crown does not have to inquire of every department of the provincial government, every department of the federal government and every police force whether they are in possession of material relevant to the accused’s case. However, this does not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material.

29And then going on to paragraph 49:

The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.

30At paragraph 50:

The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.

31It is to be noted that when the six-month gap was brought to the attention of the Crown, Ms Bhangu, early in the proceedings, her enquiries resulted in receiving the answer from the investigating officer, Chorley, that there was nothing else to give. I find that the Crown was not a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material. I am satisfied that in the circumstances the Crown did what was expected of it at the time and was entitled to rely upon the response it received from the lead investigator.

32It has been submitted on behalf of the Applicants that the Crown has obligations to the administration of justice that do not burden other litigants, that faced with its own witness’s perjury and the fact that the perjured evidence coincided with the incomplete disclosure that the Crown passed to the defence, the Crown was obliged to take all reasonable steps to find out what had happened and to share the results of those inquiries with the defence.

33This submission arises out of Officer Chorley coming to the realization that his testimony at a hearing into privileged documents that had been conducted much earlier in the proceedings had been inaccurate. He had left the court at that time with the impression that his review of legal documents seized from the Applicant’s office had been no more than cursory. Officer Chorley brought this issue to the attention of his supervisor but all that information did not trickle through to the defence. Mr Rippell points to those events as being an example of gross misconduct that ought to attract a cost award.

34The substance of this issue is whether the Crown knew about Officer Chorley's realization so that it would correspondingly have the duty to pass the information on to the defence.

35Officer Chorley had written in his notes the following:

8:55 hours. Attended Assistant Crown Attorney Bhangu's office. B. Bhangu advised of possible counsel change for Emms. I advised of [the next word in his notes is “obstruction” but he testified that what he meant was “observation”] and was instructed to complete affidavit as directed by Detective Taylor.

36Then later as he is using his computer to prepare his ‘will-say’ statement for the Crown, he writes that he “notified the Crown”. In addition to that, there is the evidence of Officer Taylor who testified that he was told about this by Officer Chorley and he told Officer Chorley to go and speak to the Crown.

37On the 25th of May, 2011 during the 11 (b) Charter breach hearing, Officer Chorley testified as follows:

He was asked at page 51, line 20, by Mr. Rippell: "Do you recall ever telling the Crown yourself?" Answer: "I don't have any recollection of that."

38In re-examination by Ms Bhangu, Officer Chorley testified that he couldn’t remember what he said to the Crown, if anything, about this particular issue. He continued: “I just don't. I just don't know. And looking at my notes doesn’t help me.” Officer Chorley waffled in his testimony in terms of what he said, who he spoke to, what the content was, and what words were used.

39Ms Bhangu made submissions on this point in the context of her 11(b) submissions that Officer Chorley's notes were not filed for the truth of their contents unless there was an application to have them fall within a principled approach to the hearsay rule. Rather, they were an aide memoire , they were put to him, he was cross-examined extensively on them, but his evidence of what he told the Crown is based on the viva voce evidence he gave in the box. The import of his testimony was ‘I don't remember what I told her’, ‘I don't remember when’, ‘I don't remember the language that I used’.

40Based upon that nebulous, waffling, seemingly constantly changing evidence of Officer Chorley on this issue, it would be very dangerous to make a finding that the Crown had actual knowledge that he came to the view that his evidence at the privilege hearing was inaccurate. Rather, it is equally consistent with the position that the Crown heard it for the first time along with the defence when Officer Chorley was cross-examined at the preliminary inquiry.

41This is a defence application. The Applicants bear the onus, and although suspicions are raised on this body of unreliable evidence on this very point, it is insufficiently reliable and credible upon which to conclude that the Crown knew that Officer Chorley had come to this conclusion that it should have advised the defence, and that the Crown is therefore tarnished with misconduct of the highest order for which costs should be ordered.

42Counsel for Mr Emms submits further that even if I were to accept that Officer Chorley had not told the Crown about his misleading the court, that it didn't happen, then I would be faced with a situation in which the Crown Attorney was then in possession of evidence that an officer had put in his notes that he told her something that he hadn’t, and then went back and typed a draft ‘will-say’ affidavit that he did something that he didn't do. In such circumstances it would be incumbent upon the prosecution to make inquiries, reassess its case and advise the defence.

43If the Crown doesn’t do that, but instead continues on with evidence that not only did the officer swear a false affidavit in the past, he then fabricated in his notes and in a draft ‘will-say’ that he had told the Crown when, in fact, he didn't, such a state of affairs would be “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. Further there would be sufficient evidence to find that the Crown was a party to the misconduct and therefore sufficient to make an order for costs against the Crown, because “the duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.” (See R v. McNeil supra)

44In response to Mr. Rippell’s submission that the Crown was complicit in as much as it did not take action when faced with the very real obligation to reassess its case when it did finally learn of Officer Chorley’s position that he had given inaccurate evidence at the privilege hearing, it is important to remember the Crown’s position that this was a prosecution not dependent upon the evidence of Officer Chorley. The Crown sought a committal at the preliminary inquiry that had nothing to do with him. He wasn't a necessary witness for the Crown in terms of the prosecution. So in terms of the Crown's obligation to reassess and determine whether to continue with the prosecution, to reassess whether it still had a reasonable chance of success, it must be remembered that Chorley was not a necessary witness. He might have had issues and warts that the defence wanted to explore, but in terms of whether the Crown needed him, the answer was in the negative.

45There being evidence that the Crown did not need Officer Chorley to prove its case, and there being no evidence that an absence of his testimony would be detrimental to the defence, I find that it was not a marked or unacceptable departure from the reasonable standards expected of the prosecution for the Crown to not re-assess its chances of obtaining a conviction in light of the waffling and seemingly constantly changing evidence of Officer Chorley.

46Moreover, at the 11(b) Charter breach hearing before this Court on June 30th, 2011, Ms Bhangu, was re-examining Officer Chorley on the issue of the draft ‘will-says’ recovered from the server. She was attempting to get a sense of how they were created, what he did with them, and why they resembled each other but weren't identical.

47At page 107 of that day’s transcript, Mr. Rippell rose to object saying:

And Your Honour, just so it's clear, I have no problem with my friend doing this, and I certainly mentioned this, but I just remind that if we go to an abuse, she can spend hours on this issue if she like. But if she feels this is going to help her make 11(b) arguments, that's fine. If not, she certainly has every right to cover this area at another time because we might be able to get to the evidence in on the 11(b). If she plans to argue it on the 11(b), that's fine. My objection is only relevance. Not that this wouldn't be relevant to another motion, but I don't see how it impacts the 11(b).

48Modest though it might have been, there was clearly some effort to curtail the Crown from fleshing out the evidentiary record on this issue about what the Crown knew. That strategy takes on a different import particularly in light of the turn of events in which the defence now seeks a finding of misconduct of the highest order based on the Crown’s lack of making appropriate inquiries for which costs should be ordered.

49The defence cannot have it both ways; a complaint that the Crown made no inquiries and then later to object when the Crown attempts to flesh the issue out. It is not only not fair, it is counter-productive to the issue to be decided.

50On this issue, the ‘ Failure of the Crown in its Obligations to the Administration of Justice Arising out of its Own Witness’ Perjury’ I am satisfied that there has been no marked or unacceptable departure from the reasonable standards expected of the prosecution. The Crown was neither a party to the breach of disclosure protocol nor did it participate in the wanton and reckless disregard by the investigating officer, Officer Chorley of the Applicants’ protected Charter interests.

51I am likewise satisfied on this issue that no exceptional circumstances exist where fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation.

IV. RULING and REASONS

(a) Crown Misconduct

52## IV. RULING and REASONS

Officer Chorley's note taking practices fell far below police standards: they were illegible, disorganized, scribbled on loose scraps of paper but there is no evidence to suggest that the Crown was somehow complicit in that.

53Officer Chorley's notes were not provided to the Crown so that they could, in turn, be disclosed. There is no evidence to suggest that the Crown sat on notes or encouraged Officer Chorley to sit on his notes. Beyond requesting them and then waiting for them to arrive, there was little that the Crown could do. There is no evidence to support a finding that the Crown participated in delaying the notes being forwarded in a timely way.

54The Barrie Police Service did not adequately resource this investigation, there being only one investigator assigned to what appeared to have some significant complexity. Officer Chorley, the main investigator, was removed from this case to work on a homicide when the need arose. He was then transferred out of the fraud unit after the information initiating the charges against the Applicants was sworn. That was at a most crucial time for getting material ready to be disclosed. Then when disclosure was made, the police were not prepared to pay civilian employees to type his notes even after the issue of their illegibility was revealed.

55One would be hard pressed to find that liability for late disclosure lies with the Crown either as a party to the delay or as being complicit in the delay.

56The Crown had no control over Officer Chorley's assignments as a member of the Barrie Police Service and therefore ought not to be held responsible for his reckless and wanton attitude. On the contrary, when the Barrie Police solution to the illegible notes didn't work, the Crown immediately bore the cost of and paid a certified court reporter to do the transcriptions. Hardly an act of complicity with regards the delay in making disclosure.

57The police had been in possession of material seized pursuant to a warrant for a significant period of time before it was provided to the Crown. Once again, one is hard-pressed to suggest complicity on the part of the Crown when it was the police who had knowledge and possession of the material. The Crown had neither.

58My finding on the 11(b) Charter breach that the Crown did not prioritize this matter in the Ontario Court of Justice to get the preliminary inquiry done more quickly, since that's where there was a huge amount of delay, and did not seek to bump other matters to try to get the preliminary inquiry moved ahead, and my observation about the Crown’s inability to get Officer Chorley to produce all of his notes, which were secured in the property room at the Barrie Police Service station to which the Crown had no ready access, while they lay at the feet of the Crown in terms of conducting the prosecution, they cannot be said to be so aggravating and egregious as to be characterized as a marked and unacceptable departure of the conduct reasonably expected of the Crown.

59In terms of the allegations of Crown misconduct made by the Applicants, I am not satisfied that the Applicants have established that the Crown engaged in oppressive or abusive conduct. While this prosecution could have been more efficiently conducted, it was not one which fell markedly and unacceptably below reasonable standards. There is no doubt the investigator could have been better organized and more focused.

60However, viewing the evidence as a whole I am not prepared to find that the Crown acted in such a way as to sufficiently violate the rights of the Applicants, either under the common law or the Charter to demonstrate a marked and unacceptable departure from the reasonable standards expected of the prosecution.

61As mentioned above, costs orders will not be made against the Crown for the misconduct of investigative agencies unless the Crown has participated in the misconduct. A substantial portion of the evidence relied on by the Applicants relates to the investigative decisions and actions made by Officer Chorley the main investigator. In my view the Applicants have failed to establish that any misconduct on the part of Officer Chorley was contributed to or participated in by the Crown. Where some other party has engaged in misconduct the appropriate remedy is a civil remedy, namely a cost claim for damages: R v. Tiffin (Supra)

(b) Other Exceptional Circumstances

62### Other Exceptional Circumstances

In appropriate circumstances, costs may be awarded against the Crown as a Sec 24(1) remedy for a Charter breach in cases not involving Crown misconduct. However it requires something that is rare and unique that must at least result in something akin to an extreme hardship on the defendant.

63The Applicants submit that their case is rare and unique and has resulted in something akin to an extreme hardship on them. There is no doubt that both Applicants have been significantly affected both personally and financially by the prosecution of this case.

64However I am not satisfied that the Applicants have demonstrated that on the facts before me there exists exceptional circumstances where fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation. Nor can I say that the circumstances in this case were exceptional.

65Each of the Applicants was accused of criminal offences. Criminal proceedings were brought in circumstances where ultimately the preliminary hearing judge found that there was sufficient evidence to commit the Applicants for trial. It was pursuant to their application for relief as result of a breach of their 11(b) Charter rights that the charges against them were stayed by this Court.

66No misconduct has been established that was attributable to the Crown nor was it established that the Crown contributed to any misconduct. Exceptional circumstances requires more than circumstances where a person has suffered losses for which he or she is not responsible. This case was neither exceptional, rare or unique.

67It should be noted that the Applicants are not without a remedy in this case for what they obviously feel is oppressive and abusive conduct at the hands of the Crown and the investigating officer. My conclusions in this decision should not be taken in any way as a comment on the merits of any civil action that the Applicants may bring or have brought regarding the conduct of the Crown or investigating agency or any other parties relating to this matter.

V. RESULT

68## V. RESULT

For the reasons set out above, I am not satisfied that the Applicants have established that the facts and circumstances of this case warrant an order of costs against the Crown. Accordingly, the motion for costs is dismissed.