) ) HER MAJESTY THE QUEEN ) Janice Barclay ) for the Crown - v. - ), 2012 MBPC 46

2012 MBPC 46 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Janice Barclay ) for the Crown - and - ) ) NICHOLAS JOHN MORIN ) Michael Owens ) for the Accused Accused. ) ) ) Judgment Delivered: ) June 13, 2012 SLOUGH, P.J. INTRODUCTION [ 1 ] The accused is charged with driving with a blood alcohol reading of over .08 and driving while impaired arising from events on January 7, 2011. The trial commenced on January 6, 2012 at which time the Crown called the main investigating officer Constable Hilchie.

Constable Hilchie provided his evidence in chief and cross-examination commenced. A couple of hours into the trial it was determined that the breath technician in this case had notes relating to his involvement in this matter but that those notes although requested had not been provided to defense counsel. The Crown agreed that an adjournment of the matter was appropriate. Counsel for the accused seeks an order of costs against the Crown for the needless expense created by the Crown’s failure to live up to its disclosure obligations. This is my decision with respect to that application.

LAW RELATING TO COSTS [ 2 ] There is no issue that the provincial court is a court of competent jurisdiction and can assess costs against the Crown pursuant to s. 24 (1) of the Charter . The law relating to jurisdiction and the test to be applied in making an order of costs against the Crown is succinctly stated by Chief Justice McLachlin in R. v. 974649 Ontario Inc. [2001] 3 S.C.R. at paragraphs 86-87: “86 Nor will recognizing the jurisdiction in provincial offences courts to issue costs awards as a Charter remedy risk turning the Canadian legal system “upside down”.

By ensuring that the remedies available to the provincial offences court fall within its competency as an institution to issue, meaningful access to Charter relief is promoted with minimal disruption to the existing jurisdiction scheme. There is little reason to believe that awarding costs will strain the work habits, resources or expertise of provincial offences courts; in fact, experience to this point suggests otherwise. 87 Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily.

Crown counsel is not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution. I fail to see how the provision of an expedient remedy in such cases, from a trial court that is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice.” (emphasis added)

[ 3 ] Therefore the question to be determined is whether or not what occurred in this case constitutes a “marked and unacceptable departure from the reasonable standards expected of the prosecution”. I should note that the fact it was the R.C.M.P. who made the error is of no moment, the Crown bears the responsibility. FACTS [ 4 ] The circumstances leading to the Crown's failure to disclose are as follows: having been charged the accused retained Michael Owens as his counsel. Mr. Owens diligently requested disclosure and initial disclosure was sent to him on January 28, 2011.

In response to another disclosure request from Mr. Owens the Crown's office sought further particulars from the R.C.M.P. Included in this request was a request for the notes of Constable Telfer. Constable Telfer's involvement consisted of driving out to the scene of the arrest to provide an ASD device to Constable Hilchie. In addition Constable Telfer acted as the breath technician. Clearly his evidence is important.

After two requests from the Crown for Constable Telfer's notes in February of 2011, the R.C.M.P responded in June 2011 advising that Constable Telfer did not have any notes with respect to his involvement with this accused. This response was provided by Constable Harder who had been assigned responsibility for the file upon Constable Hilchie’s transfer to another detachment. It was not until the trial commenced on January 6, 2012 that Constable Telfer advised the Crown that he had notes relating to his involvement in this matter.

These notes consisted of three pages detailing his involvement with respect to the ASD demand and evidence relating to the taking of the breath samples. A review of these notes suggests that some of the times noted by Constable Telfer do not appear to correspond to times provided by Constable Hilchie in his evidence on direct. The discrepancy in the times would no doubt have been the subject of cross-examination by counsel for the accused. [ 5 ] Upon the discovery of the failure to disclose Constable Telfer's notes a recess was taken for approximately an hour.

Once court recommenced the Crown indicated that if the accused wished an adjournment they would not be opposed. That offer was accepted. In retrospect more thorough consideration of the adjournment request should have occurred prior to the Court granting the adjournment. While I previously indicated that there was clearly relevant information contained in the notes, I expect that counsel of Mr.

Owens’s skill and experience would have been capable of taking this information in stride and adapting his cross-examination of Constable Hilchie which had not been completed and his cross-examination of Constable Telfer which had not commenced. The undisclosed information did not alter trial strategy; rather, it simply provided an additional means by which to attack the Crown’s case. [ 6 ] In any event, that ship has sailed, so the issue that must be examined is whether or not costs against the Crown are warranted.

Once the costs application was brought I requested a breakdown of the costs and written argument with respect to the law relating to costs against the Crown. At the conclusion of the hearing I ordered that the Crown provide a transcript of the proceedings of the trial on January 6, 2012 at no cost to the accused. It is my understanding that the Crown has provided the transcript as ordered. [ 7 ] In March 2012 written argument was provided by both counsel and the counsel for the accused requested in order of $4833 in costs.

The cost requested are as follows: “The costs thrown away are as follows: Travel time: 10 hours x 240 per hour = $ 2,400.00 Preparing for continuation of trial: 2 x 240 per hour = $ 480.00 The costs of having to prepare this Brief: a. research time: 2 hours x 240 per hour = $ 480.00 b. drafting Brief: 1.5 hours x 240 per hour = $ 360.00 Mileage: .40 per kilometer x 505 km = 202.00 x 2 = $ 404.00 Hotel: $ 150.00 Meals: $60.00 per day x 2 days = $ 120.00 Total: $ 4,394.00

Tax on total: $ 439.40 Grand Total: $ 4,833.40” [8] By way of explanation it should be noted that Mr. Owens is a resident of Saskatoon, Saskatchewan. Accordingly, many ofthe costs relate to travel and related expenses involving Mr. Owens attending court in Dauphin, Manitoba. There is no doubt that Mr.Owens provides competent representation. Nevertheless, lawyers in this jurisdiction provide the same expertise without the additionalexpense associated with travel from a relatively distant city. Accordingly, the costs and expense related to travel may well beproblematic: See R. v. Abrey 2007 SKQB 213 , [2007] S.J.

No. 331 at paragraph 31. ANALYSIS [9] My task in this case is to determine whether or not the failure to disclose Constable Telfer's notes and the misinformationprovided by the R.C.M.P. amounts to a marked and unacceptable departure from the reasonable standards expected of the prosecution. Areview of the case law demonstrates that a costs order against the Crown for failure to disclose is truly an exceptional remedy. The caseswhere costs have been ordered describe the Crown’s conduct as “remarkable”, “oppressive” “flagrant and unjustified” see R. v. Griffin2011 ABCA 197 at paragraphs 25 – 31.

In the leading Manitoba case: R. v. Sweeney 2003 MBCA 127 at paragraph 62 the ManitobaCourt of Appeal reversed a costs order stating that although the Crown’s conduct in failing to disclose information to the defence was: “…a mistake, an unintended, innocent, and inadvertent one, and perhaps even a careless one. It did not, however, amount to a markedand unacceptable departure from the reasonable standards expected on the prosecution.” The awarding of costs is very much the “exception rather than the rule” see R. v. Munoz 2008 ONCA 110 at paragraph 11.

While costshave been awarded in a number of cases cited by counsel for the accused I note that in most of these cases the Court was dealing with asituation where the Crown had explicitly refused to comply with a disclosure request or the police had systemic issues that resulted inrepeated failures to disclose relevant information resulting in the Judge determining that a message needed to be sent to the police by anorder of costs. Indeed, in the case that Mr. Owens places significant emphasis upon R. v.

Houk (an unreported decision of theSaskatchewan Provincial Court dated June 24, 2005) Judge Kaiser describes the failure to disclose in the following manner: “Now when I speak of the Crown I want it to be clearly understood that I’m not speaking of Mr. Healey; I’m speaking of the Crown in itslarger sense. And I’m also speaking of the Crown to the extent that it must take ownership of the actions of the person to whom thedisclosure obligation was delegated, that is to say that member of the Royal Canadian Mounted Police.

Because of the long history offailures to disclose continuation reports, I consider the conduct to be of a bad kind, of a kind that borders on being blatant. And I say thatnot because I attribute any particular motive to the officer concerned, it is more as follows. It has been a long-standing problem and it’s aproblem that hasn’t been addressed. And the failure to address what’s been a long-standing problem makes the problem blatant in myview.” [10] In my view what happened in this case while unfortunate and regrettable was not blatant or flagrant.

Rather it is the result ofan error and carelessness by the RCMP which is not symptomatic of a larger systemic problem in this jurisdiction. While there is nodoubt the accused has endured additional expense as a result of the conduct of the R.C.M.P. I am not convinced that the facts in this casemeet the high threshold justifying an order of costs. Accordingly, it is my determination that the appropriate remedy was theadjournment and the provision of the transcript to the accused at no cost. ___________________________ Slough, P.J.