R. v. Puddy, 2012 ONCJ 84

Citation: R. v. Puddy, 2012 ONCJ 84 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: MICHAEL PUDDY Ñ AND Ñ HER MAJESTY THE QUEEN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) A.Goodman For the Applicant S. Byrne For the Crown Respondent Heard: October 31, 2011 REASONS for RULING (Re Application for Costs) MELVYN GREEN, J.: A. INTRODUCTION [1] Michael Puddy, the Applicant, was charged with three criminal offences as a result of events that occurred during the courseof the G20 protests in Toronto in June 2010: obstruct police; carry a concealed weapon and possession of a prohibited weapon.

The firsttwo charges were dismissed following a non-suit application at the close of the CrownÕs case. Although Crown counsel opposed theapplication in respect of the Òconcealed weaponÓ charge, she agreed that dismissal was the appropriate result respecting the count ofÒobstruct policeÓ. Following a three-day trial, the Applicant was acquitted of the third charge, with written reasons, on August 11,2011: [2011] O.J. No. 3690.

Long prior to the verdict, the Applicant filed notice of his intention to seek costs as a remedy formisconduct he attributes to the police and the Crown and that he says affected his arrest, initial detention and subsequent prosecution in aconstitutionally impermissible manner. Relying on R. v.

Nixon (2011), 2011 SCC 34 , 271 C.C.C. (3d) 36 (S.C.C.), counsel forthe Respondent Crown submits that the Applicant has failed to meet the evidentiary threshold for such motion and, accordingly, hisapplication for costs should be dismissed. [2] In the end, I agree with much of the RespondentÕs position and dismiss the application for costs. My reasons for doing sofollow. B. BACKGROUND [3] The Applicant was one of a crowd of several hundred persons protesting against the G20 events in Toronto on the evening ofJune 26, 2010.

It appears that unknown police officers trying to clear the area at some point cuffed the Applicant, Puddy, and left him

lying on the ground. No evidence was called suggesting that Puddy at any time engaged in violence or any conduct amounting to abreach of the peace, nor was any evidence tendered as to the circumstances of his initial detention. Proceeding on the assumption that hehad been arrested for breaching the peace, other officers collected the cuffed Applicant and escorted him to a nearby police wagon wherehe was subject to preliminary processing and a field pat-down search. A small folding knife was located in a pouch conspicuouslyattached to PuddyÕs belt.

The knife was found to open through the application of centrifugal force, thereby bringing it within thestatutory definition of a prohibited weapon. [4] The Applicant was eventually transported to a temporary detention facility known as the Prisoner Processing Unit (PPU)constructed to hold G20 arrestees. The PPU was very congested, it lacked beds, and its toilets were exposed. Puddy was strip-searchedon entering.

Later, at his request, he was permitted to call a legal assistance hot-line number. [5] Although some other prisoners were released from the PPU on a Promise to Appear, the officer who processed Puddydetermined that he should be held for a show cause hearing. He also recommended that the Crown seek a detention order in view of theseized knife and his assessment of the risk of recurring G20 violence.

In preparing the Crown synopsis for the bail hearing, the officernoted that Puddy was Òdressed likeÓ members of the ÒBlack BlocÓ (a loose anarchist group reputed to engage in violence to disruptthe G20 Summit) and that he had breached the peace when he refused a police command to move back, thus accounting for his arrest.The officer preparing the synopsis had no specific information about PuddyÕs conduct prior to his arrest or the circumstances of hisinitial detention; as a result, he ÒgeneralizedÓ from reports provided for other persons taken into custody that day.

Puddy was thus heldfor a show cause hearing while charged with three offences: obstructing a peace officer, possession of a prohibited weapon and carryinga concealed weapon at a public meeting. (At a later date, the final charge was replaced with one alleging possession of a concealedweapon.) [6] The ApplicantÕs bail hearing did not occur until June 28th. Puddy had no criminal record and no outstanding charges. Hewas employed and had a stable domestic relationship. Nonetheless, Crown counsel sought PuddyÕs detention on the secondary andtertiary grounds.

He asserted that the Applicant Òis believed to be a member of the Black Bloc Anarchist GroupÓ although, whenpressed, conceded that other than his black clothing and some tattoos there was no evidence linking him to the Bloc. (At trial, a yearlater, a different Crown counsel conceded that there was no evidence that Puddy was a member of the Black Bloc.) Following thetestimony of a proposed surety of reputable bearing, Crown counsel limited his request for a detention order to the tertiary ground.

Aftertwo nights of custody, Puddy finally was ordered released Ð on a $25,000 recognizance with onerous conditions, including ÒhousearrestÓ. This latter condition was varied within a few weeks of his release and other stringent terms were later relaxed including (if notuntil his trial) the quantum of the recognizance. [7] At trial, I concluded that Puddy satisfied me that his right not to be arbitrarily detained (Charter, s. 9) had been infringed bythe police during his initial apprehension.

Further, as the subsequent search of Puddy and seizure of his knife were incidental to thatarrest, its invalidity rendered the search and seizure violative of his Charter s. 8 rights. I held that the just and appropriate remedy forthese constitutional breaches was an order excluding the evidence of the knife at the defendant PuddyÕs trial. For this reason, as well ason the merits, Puddy, now the Applicant, was found not guilty at trial. [8] The ApplicantÕs motion for additional remedy by way of costs was reserved pending the disposition of the ApplicantÕscriminal prosecution.

This costs application is founded on: 〈 The CrownÕs failure to withdraw the charge of obstruct police; 〈 The police violations of the ApplicantÕs s. 9 rights; 〈 Violations of the ApplicantÕs s. 8 rights, including the search and seizure of his knife and the strip-search that followed at thetemporary holding facility, the PPU; 〈 The conditions at the PPU, said to violate the ApplicantÕs ss. 7, 9 and 12 rights; 〈 The decision to hold the Applicant for a show cause hearing and, relatedly, the drafting of a synopsis for the show cause that wasgeneralized from allegations referable to other arrestees and which jeopardized the ApplicantÕs chances of release and prejudiced theterms of that release when it was finally ordered.

The costs sought by the Applicant by way of remedy are those attributable to his legal representation at trial and the related preparation:here, $10,310. C. ANALYSIS (

a) Introduction [9] The Applicant has established breaches of his ss. 8 and 9 Charter rights. As such, he is entitled to apply for a remedypursuant to s. 24(1) of the Charter Òto meaningfully vindicate [his] rights and freedomsÓ: R. v. Conway, 2010 SCC 22 , [2010]1 S.C.R. 765, at para. 103. As noted by the Supreme Court in R. v. Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651, at para. 18: ÒRemedies under s. 24(1) of the Charter are flexible and contextual [and t]hey address the most varied situations.Ó An award of costsis one remedy available under s. 24(1).

Indeed, costs have been ordered against the state in a variety of criminal proceedings. By way ofOntario appellate examples only, see R. v. Pawlowski (1993), (ON CA), 79 C.C.C. (3d) 353 (Ont. C.A.); R. v.Ciarniello (2006), (ON CA), 211 C.C.C. (3d) 540 (Ont. C.A.); R. v. Brown (2009), 2009 ONCA 633 , 247C.C.C. (3d) 11 (Ont. C.A.); R. v. Zarinchang, 2010 ONCA 286. [10] However, as succinctly understated by Hill J. in R. v. Dutt, 2011 ONSC 5358, at para. 37, costs Òare not routinely ordered incriminal casesÓ.

More fairly put: ÒAn award of costs against the Crown is exceptional in both Charter and non-Charter casesÓ: R. v.

Griffin, 2011 ABCA 197 , [2011] A.J. No. 705 (C.A.), at para. 25. (See also, R. v. M.(C.A.), (SCC), [1996] 1S.C.R. 500, at para. 97, and R. v. 974649 Ontario Inc. (Dunedin Construction), 2001 SCC 81 , [2001] 3 S.C.R. 575, at para.87.) In Canada v. Foster (2006), (ON CA), 217 O.A.C. 173, at para. 66, the Court of Appeal said that, absentCrown misconduct, orders for costs in criminal cases were ÒunusualÓ. In R. v. Taylor (2008), 2008 NSCA 5 , 261 N.S.R. (2d)247, the Nova Scotia Court of Appeal limited such relief to Òexceptional circumstancesÓ.

And, again in Ontario, in affirming an awardof costs against the Crown in R. v.

Pawlowski, supra, at para. 13, the Court of Appeal held that such precedent would apply Òonly in arare case that is unique and one where it is questionable whether there will ever be a similar prosecutionÓ. [11] To the extent that the costs application, as here, is grounded in a claim of Crown misconduct, the Supreme Court has recentlydetermined that trial courts ought not to proceed Òwith a review of prosecutorial discretion in the absence of a ÔthresholddeterminationÕ that the inquiry is warranted É [or] without a proper evidentiary foundationÓ: R. v. Nixon, supra, at para. 60.

Forpragmatic reasons, the Applicant fairly agrees that the same threshold inquiry should apply to the entirety of his claims for Charter reliefby way of an award of costs. (

b) The Exercise of Crown Discretion and its Judicial Review [12] The ApplicantÕs claim of constitutional impropriety brought against the Crown faces a number of legal hurdles. First, no costsaward in favour of an accused lies against the Crown for Charter breaches perpetrated by the police absent proof of Crown participationin or collusion with the authorities responsible for those breaches. There is no such evidence here. As said by the Court of Appeal in R.v.

Tiffin (2008), 2008 ONCA 306 , 232 C.C.C. (3d) 303, at para. 96, [C]osts orders will not be made against the Crown for the misconduct of other parties, such as witnesses or investigative agencies, unlessthe Crown has participated in the misconduct. (A subsequent Crown notice of appeal was quashed on grounds of mootness and without reference to the costs issue: (2008), (SCC), 236 C.C.C. (3d) 1 (S.C.C.).) To the same effect, see R. v. Costa (2006), (ON SC), 149 C.R.R.(2d) 223 (Ont. Sup. Ct. J.), at para. 68, and R. v.

Branton (2001), (ON CA), 53 O.R. (3d) 737 (C.A.), at para. 41. [13] Second, a claim for a remedy of costs for prosecutorial misconduct must amount to an abuse of process to prevail and, pursuantto Nixon, supra, must be founded on a sufficient evidentiary basis to permit it to proceed. At Òa minimumÓ, as said by the SupremeCourt in Dunedin Construction, supra, at para. 87, the Òjurisprudence uniformly restricts [costs] awards É to circumstances of a markedand unacceptable departure from the reasonable standards expected of the prosecutionÓ.

While costs may, if only rarely, be awarded inexceptional circumstances, the Court of Appeal has emphasized that Òit is the courtÕs inherent power to protect against abuse of processthat underlies the definition of exceptional circumstancesÓ: R. v.

Tiffin, supra, at para. 95. [14] The ApplicantÕs claim is that the Crown abused its power by permitting the Òobstruct policeÓ count to proceed incircumstances where it was or ought to have been patent to prosecuting counsel that there was an inadequate evidentiary basis for afinding of guilt and that a dismissal of the charge, as ultimately occurred on a non-suit application, was inevitable.

In short, the claim isthat Crown counsel, in permitting the ÒobstructÓ charge to proceed, displayed such prosecutorial misconduct as to amount to an abuseof the courtÕs process. [15] A fundamental impediment to the ApplicantÕs claim is that the Crown conduct that here attracts complaint clearly falls underthe umbrella of ÒcoreÓ elements of prosecutorial discretion. As explained by the Supreme Court in R. v. Krieger, 2002 SCC 65, [2002] 3 S.C.R. 372, at paras. 42-47: In making independent decisions on prosecutions, the Attorney General and his agents exercise what is known as prosecutorialdiscretion.

É ÒProsecutorial discretionÓ 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 GeneralÕs office and which areprotected from the influence of improper political and other vitiating factors by the principle of independence.

É An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts É Without being exhaustive, we believe the core elements of prosecutorial discretion encompass É the ultimate decisions as to whether aprosecution should be brought, continued or ceased, and what the prosecution ought to be for.

Put differently, prosecutorial discretionrefers to decisions regarding the nature and extent of the prosecution and the Attorney GeneralÕs participation in it. [Underlining inoriginal; italics added.] And, as said at para. 32, ÒSubject to the abuse of process doctrine, supervising one litigantÕs decision-making process __ rather than the conduct of litigants before the court __ is beyond the legitimate reach of the courtÓ. (See, also, Hill J.Õs recent review of the governingprinciples and jurisprudence in R. v. Mohla; R. v. Singh, 2012 ONSC 30 , [2012] O.J. No. 388 (Sup. Ct.

J.), at paras. 156-164.) [16] Clearly, the exercise of prosecutorial discretion that attracts the ire of the Applicant falls directly within the compass of corediscretion that is not judicially reviewable absent proof of an abuse of process by the Crown. Two categories of abuse of process, bothembraced by s. 7 of the Charter, are recognized. As canvassed in R. v. Nixon, supra, at paras. 36-41, the first is prosecutorial conductthat affects the fairness of an accusedÕs trial.

The second, or ÒresidualÓ, category has more to do with societal expectations of judicialsystem fairness than any direct prejudice to an accusedÕs interests. It comprehends prosecutorial conduct that, as said in R. v.OÕConnor, (SCC), [1995] 4 S.C.R. 411, at para. 73, Òcontravenes fundamental notions of justice and thus underminesthe integrity of the judicial processÓ. [17] In my view, there is no evidence before me from which I could possibly conclude that the exercise of Crown counselÕs

prosecutorial discretion amounted to an abuse of process as contemplated by either conceptualization. The impugned charge of ÒobstructpoliceÓ was prosecuted in tandem with two other charges premised on the same evidentiary foundation and arising from the samefactual scenario. The witnesses called by the Crown in aid of this charge were the same witnesses required to testify with respect to thetwo other counts.

Given the identity of these witnesses, the preparation demanded of the defence could not have been more thanmodestly expanded, if that, as a result of the CrownÕs failure to withdraw or stay the obstruct charge, nor would the trial have been anybriefer or the ApplicantÕs penal jeopardy any materially different had the Crown determined not to proceed with the disputed count.

AsI cannot, of course, look into the CrownÕs brief, and as the defence has not tendered a disclosure package or any other extrinsic materialsto permit me to reason otherwise, I find I have no basis to infer that Crown counselÕs decision to proceed with the prosecution of theobstruct count was arbitrary, without foundation or otherwise a product of bad faith or oblique motive. As said by the Supreme Court inR. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at para. 63, ÒI do not think there is any warrant for presuming the executivewill act unconstitutionally or for improper purposesÓ.

Further, upon the prosecution closing it case, Crown counsel immediatelyconceded that there was insufficient evidence to compel the Applicant to answer the obstruct charge and that it should be dismissed. [18] On reviewing the evidence, I see nothing in the conduct of the prosecutor, or the exercise of her core discretion, that couldreasonably be construed as oppressive or vexatious, offensive to the communityÕs sense of fair play or decency, or in any wayprejudicial to the Applicant or the integrity of the judicial process.

The threshold evidentiary showing mandated by Nixon, supra, beforeembarking on an inquiry into the exercise of the CrownÕs core discretion is simply not met in the case before me. (

c) The Remaining Claims for a Costs Remedy [19] The remaining bases for the ApplicantÕs claim for costs as an appropriate and just s. 24(1) remedy rest on allegations of policefacilitated breaches of his Charter rights.

In brief rehearsal, these include his arbitrary detention and unlawful search (both of which Ifound to have occurred), his confinement overnight in oppressive conditions at the PPU, and his being held for two days before finallybeing released from custody as a result, at least arguably, of a substitute booking sergeantÕs mischaracterization (perhaps negligently so)of the ApplicantÕs risk to public safety. [20] The Applicant has already been afforded a constitutional remedy for the breach of his ss. 8 and 9 Charter rights through anorder excluding evidence of the seized knife at his trial.

My analysis of the factors bearing on that exclusionary remedy extendedbeyond the circumstances immediately surrounding the offensive detention and search. As I wrote of the Applicant in the trialjudgement, supra, at para. 60: He was physically restrained, detained for two further days as a result of his initial arrest and the unlawful search that followed, and,despite having a job, a fixed address and no criminal record, was held for a show cause hearing.

In addition, his privacy interests andpersonal dignity were clearly infringed through the search and the invasive personal intrusions that inevitably accompany being held incustody. These, I find, are significant intrusions on the defendantÕs Charter protected interests.

As this paragraph makes patent, that very range of police misconduct said to ground the plea for relief by way of costs helped inform theApplicantÕs successful claim for an exclusionary order. [21] Given the tumultuous events of June 26, 2010, given the earlier-granted remedial effect of the police conduct that here attractscomplaint, given what I see as the absence of those ÒremarkableÓ, ÒuniqueÓ, or ÒexceptionalÓ circumstances that must prevail beforecosts are awarded in criminal proceedings, and given the availability of a civil process to pursue a financial remedy for the allegations ofpolice neglect and abuse advanced before me, I am driven to conclude that an application for a costs order by way of constitutional relieffor police misconduct cannot succeed in this case.

I see no reason to depart from the general proposition set out by the Court of Appealin R. v. Tiffin, supra, at para. 96: ÒWhere some other party [than the Crown] has engaged in misconduct, the appropriate remedy is acivil claim for damagesÓ. D. CONCLUSION [22] For the reasons I have earlier developed, Michael PuddyÕs application for an order for the payment of his legal costs, pursuantto s. 24(1) of the Charter, is dismissed. Ruling released on January 19, 2012 Reasons for Ruling released on February 17, 2012 __________________________ Justice Melvyn Green