R. v. SEL, 2012 ABQB 377

Court of Queen ’ s Bench of Alberta Citation: R. v. SEL, 2012 ABQB 377 Date: 20120608 Docket: 090794306Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - SEL Applicant Restriction on Publication: There continues in effect a ban on publishing the identity of the Complainant cited in earlier decisions herein. In addition there remains a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5.

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision on Costs of the

Honourable Mr. Justice S.D. Hillier _______________________________________________________ Background [ 1 ] This is an application by counsel for costs arising out of the Court ’ s finding of a Charter breach in connection with the non-disclosure of relevant materials as set out in reasons for decision herein dated January 30, 2012, and reported as R. v. S.E.L. , 2012 ABQB 71 [ “ the Charter Decision ” ]. The undisclosed material consisted of extensive transcripts of an expert witness ’ testimony in other trials. The witness had never seen these materials.

I dismissed the claim for a stay of proceedings and imposed terms for continuation of the trial. [ 2 ] Put briefly, Mr. S.E.L. seeks thrown away costs totalling $8,331.21 representing: (a) $7,500 as the fee for preparation of the Charter motion, written memorandum and one day for argument; and (b) $831.21 as the travel disbursement for re-attendance of the Expert after adjournment, excluding the airfare that she waived. Positions of Parties [ 3 ] Counsel for Mr. S.E.L. urged that thrown away costs should include costs which a party would not have incurred but for the breach or failure of the other side.

In that context, he abandoned the additional claim for the costs of attendance at additional days to complete the trial on the basis that much of that time may well have been endured even with timely disclosure. [ 4 ] Defence relied on Belzil J. in R. v. Nest , 2007 ABQB 737 at paras. 39-41 , 447 A.R. 1 to distinguish civil costs from the much less common award of costs in a criminal law context as a remedy under s. 24(1) of the Charter . A cost award of this kind is exceptional and based on Crown (mis)conduct: para. 41. Defence counsel identified more than one form of misconduct.

He asserted an unacceptable degree of negligence, not just that Crown only at a late point identified that the lengthy transcripts would be useful, but acted improperly by not advising that his prior estimate of one day for cross-exam of the expert would be much longer. [ 5 ] The position of the Crown is that the non-disclosure was a bona fide disagreement on the law as to the parameters of work- product privilege or fruits of the investigation.

As such it was neither serious or egregious misconduct that warrants a remedy of damages in a criminal law context. [ 6 ] Crown pointed out that the Court did not specifically invite submissions on a possible costs award as an alternative remedy to the Stay of Proceedings that was sought by Defence in response to the delay caused by the non-disclosure. That is true, although the subject was referenced briefly in argument and is a subset of available Charter remedies. I have examined the issue with the benefit of Crown ’ s critique of the appropriateness of such remedy in all the circumstances. Analysis

[7] I begin with reference to a portion of the Charter Decision. Starting at para. 58 of that Decision, I rejected the remedy of aStay of Proceedings as the circumstances were not sufficiently exceptional to warrant such disposition: paras. 56-57.

I then set out options at para. 60 for the Defence in pursuit of its case, concluding in the 6th point: 6. in all events, Defence shall be entitled at conclusion of the trial to apply for an Order for payment of all thrown away costsoccasioned by the breach, as determined by the Court, to be borne by the Crown. [8] I will not repeat the entirety of the points taken from the cases referred to at para. 65.

However, it is important to note thatthe Supreme Court of Canada has explicitly confirmed the power of trial courts to consider cost awards in response to Charter breaches. [9] In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, Chief Justice McLachlin concluded that Charter-basedcost awards should be “an exceptional or remarkable event” (para. 85), and that Crown error is not an automatic basis for a costs award(para. 87): 87 Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily.

Crown counsel is not held toa standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, the developingjurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from thereasonable standards expected of the prosecution. I fail to see how the provision of an expedient remedy in such cases, from a trial courtthat is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice. [Emphasisadded.] [10] So too the earlier case of R. v.

Robinson, 1999 ABCA 367, 250 A.R. 201 cautioned against routine awards and, whileexpressly not setting out rules or guidelines, did indicate that some degree of misconduct or an unacceptable degree of negligence mustbe present: para. 30. However, the case points to a distinction between the court’s general jurisdiction to award costs in criminal casesunder its inherent authority, and damages awarded as a Charter remedy under s. 24(1). General discretion requires proof of “seriousmisconduct on the part of the Crown” (para. 29).

By contrast “[s]ome degree of misconduct or an unacceptable degree of negligencemust be present before costs are awarded against the Crown under s. 24(1) of the Charter.” (para. 30). [11] The court then went on to support costs on a reduced basis “... limited to the amounts expended by Legal Aid on the secondtrial, which included the costs of the stay and costs applications.” (para. 38) [12] In R. v. Griffiths, 2011 ABCA 197, 510 A.R. 142 the Court was dealing with an appeal from the award of non-Charter costsin connection with an unintended

section 8 breach tied to plea bargain privilege. There was no evidence that the accused there hadincurred any additional legal costs arising from the non-negligent conduct of the Crown. Availability [13] Without placing greater emphasis than necessary, I find a degree of misconduct in the circumstances of this case that willsupport a damages remedy under s. 24(1). Moreover, I find the circumstances to be exceptional and not simply an error in judgment.

TheCharter breach arose from the deliberate decision to withhold from Defence relevant material intended to be used to expansivelychallenge the credibility of a key Defence witness. Crown made no reference to this material at any time leading up to his cross-examination. When asked for Crown’s position on the expert’s credentials, counsel took no issue but opaquely reserved the right to latercross-examine on background matters. This stands in the face of the duty on the Crown to disclose relevant materials, established in R.v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1, which is a well-established and developed principle ofcriminal law.

The entire build up to the aggressive confrontation with this defence witness was atypical of the entire conduct of the trial.Further, Crown never varied in his estimate of the time required for cross-examination, even after he had concluded for himself that heintended to make significant use of these transcripts not seen by the witness or Defence counsel. [14] I have already indicated in the Charter Decision that there was no basis for the assertion that these transcripts were either partof the fruits of investigation or prosecutor’s work product.

The obligation to disclose any “... prior declaration by the expert witness ...”

has been a settled part of Crown’s obligation since R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307. I do not questionthe personal bona fides of the dedicated officer of the Court to which this case was assigned to act in the public interest.

Nonetheless Ihave no difficulty in concluding that level of misconduct, taken from the entirety of the circumstances was of a degree that gave rise notonly to the Charter breach as I have already found; it further justifies an award of thrown away costs incurred beyond the reasonableexpense of a successful defence. [15] The Crown has suggested that Charter-based monetary remedies operate in a different way when the Charter breach is thebasis for a civil action, in contrast to when it occurs in the context of a criminal proceeding.

As a consequence, the Crown argues therecent Supreme Court of Canada decision of Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, which was referenced in theCharter Decision at paras. 65-66, has restricted or no relevance to the present scenario. I disagree. [16] The availability of a costs award for breach of Charter rights during a criminal proceeding is well established. Certainly sinceR. v. 974649 Ontario Inc. in 2001 s. 24(1) cost awards have been made against the Crown for improper disclosure in numerousdecisions, including: R. v. Kelln, 2003 SKQB 348, 236 Sask.R. 167; R. v.

Branton, 2010 NLTD 207; R. v. Guiducci, (Ont. S.C.); R. v. Henkel, 2003 ABCA 23, 320 A.R. 206. An unsuccessful appeal of a Charter costs award also warranted costs for theappellate proceeding in R. v. Kelln and R. v. Henkel. The Ontario Court of Appeal similarly confirmed a Charter, s. 24(1) cost award foruntimely bail hearings in R. v. Brown, 2009 ONCA 633, 255 O.A.C. 13. [17] Our Court of Appeal in R. v. Henkel at para. 26 explains the relationship between different s. 24(1) Charter remedies wherethe Crown has breached its R. v. Stinchcombe disclosure obligations.

Notably, a potential monetary award is independent and in additionto the right to full answer and defence. [26] Another decision cited by the Crown, R. v. Antinello, (1995), 1995 ABCA 117 , 165 A.R. 122, 97 C.C.C. (3d) 126, 39C.R. (4th) 99 (C.A.), involved late disclosure that clearly impaired the ability of the accused to make full answer and defence, as hiscounsel’s ability to prepare for a last minute informant witness was significantly compromised.

This resulted in a new trial being directedrather than the imposition of a judicial stay, as by the time the new trial occurred counsel would be in the position to adequately prepare.This decision illustrates circumstances where the remedy of a new trial is appropriate and discussion about that remedy really does notassist in the analysis of whether the right to timely disclosure is a right in itself embraced by

section 7 of the Charter. I agree that wherethe remedy sought is a new trial, an accused will have to show that trial fairness is affected. That is not the case where, in pre-trialproceedings, the remedy granted is an order for disclosure, an adjournment, or an award of costs. With respect to the first two remedies,the accused need only show that he or she has met the Stinchcombe threshold. With respect to an award of costs, the accused mayadditionally be required to show a level of prosecutorial misconduct: see R. v. Robinson 1999 ABCA 367 , (1999), 75 Alta.

L.R.(3d) 117, 250 A.R. 201, 142 C.C.C. (3d) 303 (C.A.) but see also R. v. 974649 Ontario Inc., supra, contra. However, the accused is notrequired to show that his or her ability to make full answer and defence has been impaired. [Emphasis added.] [18] This multifactoral approach to the protection of Charter rights, inside a criminal proceeding, meshes with the scheme inVancouver (City) v. Ward, which I believe provides a general approach to a monetary award as a Charter, s. 24(1) remedy. That analysishas four steps. The first is to establish a Charter breach: para. 23.

That conclusion was met in the Charter Decision. [19] The second step is to evaluate whether there is a functional justification for an award: paras. 24-31. The Chief Justicedescribes three functions: 25 ... For damages to be awarded, they must further the general objects of the Charter. This reflects itself in three interrelated functionsthat damages may serve. The function of compensation, usually the most prominent function, recognizes that breach of an individual'sCharter rights may cause personal loss which should be remedied.

The function of vindication recognizes that Charter rights must bemaintained, and cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages mayserve to deter future breaches by state actors. Any one of these objectives is a valid basis for a monetary Charter award: para. 31. I can see no basis at step 2 for a distinction underany of these functions as between the impact on a civil versus a criminal litigant. [20] The third step in the Vancouver (City) v. Ward analysis is to evaluate “countervailing factors”, policy reasons that balance

against a s. 24(1) Charter cost award: paras. 32-45. These are to be proven by the Crown: para. 35. Certain considerations, which the Supreme Court indicates will be identified and develop over time, make a Charter monetary remedy ‘ inappropriate and unjust ’ : para. 33. Vancouver (City) v. Ward identifies two specific examples of countervailing factors. One is that an alternative non-monetary remedy can address the Charter breach.

The second, state immunity to provide good governance, means that only government actions that are “ ... clearly wrong, in bad faith or an abuse of power ... ” may result in a monetary award: para. 43. This public law defence (para. 43) is analogous to the private tort defence available to state actors: Mackin v.

New Brunswick (Minister of Finance) , 2002 SCC 13 , [2002] 1 S.C.R. 405 . [ 21 ] Significantly, McLachlin C.J.C. explains further that the broad discretion granted to Crown prosecutors in malicious prosecution tort proceedings, and the lesser protection offered law enforcement personnel during criminal investigations, are also potential guides for appropriate countervailing factors, and the weight to be accorded: 43 ... Different situations may call for different thresholds, as is the case at private law.

Malicious prosecution, for example, requires that "malice" be proven because of the highly discretionary and quasi-judicial role of prosecutors ( Miazga v. Kvello Estate , 2009 SCC 51 , [2009] 3 S.C.R. 339 ), while negligent police investigation, which does not involve the same quasi-judicial decisions as to guilt or innocence or the evaluation of evidence according to legal standards, contemplates the lower "negligence" standard ( Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129 ).

When appropriate, private law thresholds and defences may offer guidance in determining whether s. 24(1) damages would be "appropriate and just". ... [ 22 ] In short, Vancouver (City) v. Ward specifically contemplates application of its procedures in the context of a criminal proceeding. I find this to be an instance where the threshold for prosecutorial misconduct that warrants a Charter , s. 24(1) monetary award has already been defined.

Chief Justice McLachlin concluded in R. v. 974649 Ontario Inc. at para. 81 that the absence of a cost award remedy for failure to disclose relevant evidence “ ... may deprive [the courts] of the only effective remedy to control its process and recognize the harm incurred ... ” . The Alberta Court of Appeal in R. v. Henkel , at para. 26 and R. v.

Robinson , at para. 30 , states an independent award of costs against the Crown is appropriate for non-disclosure when there is “ [s]ome degree of misconduct or an unacceptable degree of negligence ... ” . [ 23 ] I have noted the unacceptable manner and timing of the Crown ’ s revelation of the “ dossier ” on the expert witness, as well as the effect that these strategic considerations had on the progression and completion of this trial.

The Defence having established a functional basis for its claim as compensatory, Crown has not shown that this can or has been achieved through other remedies: Vancouver (City) v. Ward para. 35 . [ 24 ] The last step in the Vancouver (City) v. Ward process is to determine the quantum of an “ appropriate and just ” award: paras. 46-57. The Supreme Court warns against large awards that are against the public ’ s interest: paras. 53-54. Where there is a discrete injury, as here, compensation is the key purpose.

As such, “ ... the concern is to restore the claimant to the position she would have been in had the breach not been committed. ” ( Vancouver (City) v. Ward , at paras. 48-49 ). Quantum [ 25 ] I turn then to quantification of what the Court properly identifies as thrown away costs: (

a) As to the $7,500 preparation fee on Charter motion, written memorandum and one day for argument: I am persuaded that despite a measure of success in relation to a finding of breach, considerable time was spent on whether the whole of the case met the threshold for the exceptional remedy of a Stay of Proceedings. On that point, Mr. S.E.L. was not successful. Accordingly I set the thrown away costs as $4,500 on this aspect of the claim; (

b) As to the $831.21 travel disbursement for the Expert excluding the airfare: I find nothing to detract from this as a recoverable expense. If there had been timely disclosure, the witness would have had opportunity to familiarize herself with the material, counsel would have both been in a position to better estimate the time required and to book arrangements. The fact that Defence did not arrange for video-conferencing cannot be used as a set off against these reasonable disbursements and the full $831.21 is included as a recoverable expense.

Decision [ 26 ] Accordingly, having found that thrown away costs are recoverable on the exceptional circumstances of this case, I set the amount payable at $5,331.21. Heard on the 3 rd day of May, 2012. Dated at the City of Edmonton, Alberta this 8 th day of June, 2012. S.D. Hillier J.C.Q.B.A. Appearances: Mark Huyser-Wierenga Crown Prosecutor ’ s Office for the Crown Kelly Dawson Dawson Stevens Duckett and Shaigec for the Accused