HER MAJESTY THE QUEEN APPELLANT AND: A.K. RESPONDENT, 2016 NLCA 23

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : R. v. A.K., 2016 NLCA 23 Date : May 19, 2016 Docket : 201401H0040

Section 486.4 of the Criminal Code respecting the non-publication of the identity of a complainant or of a witness and any information from which they might be identified applies to this judgment. Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. Section 111(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person applies to this judgment.

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: A.K. RESPONDENT Coram: White, Harrington and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, St. John’s 2014 NLPC 0113 Y00111 Appeal Heard: June 18, 2015 Judgment Rendered : May 19, 2016

Reasons for Judgment by Hoegg J.A. Concurred in by White and Harrington JJ.A. Counsel for Appellant: Frances Knickle Q.C. Counsel for Respondent: Rosellen Sullivan Hoegg, J.A.: INTRODUCTION [ 1 ] A.K., a young person, was acquitted following trial on a charge of sexual assault. During the trial, he applied for a costs order against the Crown on the basis that his Charter right to disclosure had been violated and that he was entitled to costs as a remedy under section 24(1). After the trial concluded, A.K. amended his application for costs to include other Charter breaches.

The Judge found Charter breaches and granted A.K.’s application, ordering that certain of his legal costs (totaling $33,445.79) be paid by the Crown. [ 2 ] The Crown appeals the Judge’s order on the basis that it is incorrect in law. While the Crown acknowledges that A.K. suffered a breach of his

section 7 Charter right to disclosure because of the late disclosure of relevant medical evidence, the Crown argues that the breach was remedied by an adjournment which enabled him to make full answer and defence to the charge and that there were no other breaches of A.K.’s Charter rights. Specifically, the Crown maintains that A.K. did not suffer a breach of his

section 11(

b) right to be tried within a reasonable time and that there was no abuse of process in the handling of the Crown’s case.

The Crown argues that if this Court should find any breach of A.K.’s Charter rights other than that resulting from the late disclosure, none was as a result of Crown conduct that was of “a marked and unacceptable departure from the standard of conduct reasonably expected of the prosecution” so as to attract an award of costs under section 24(1). [ 3 ] A.K. argues that the Judge’s costs order is justified on the basis that he did suffer breaches of his Charter rights to disclosure and to be tried within a reasonable time.

A.K. also argues that the Crown’s handling of the case amounted to an abuse of process justifying the Judge’s costs award. BACKGROUND [ 4 ] On February 21, 2013, the complainant’s mother reported her young daughter’s allegation of sexual assault by A.K. to the police. The mother advised the investigating officer (Cst. A.) that the complainant had been examined by both her family doctor and a pediatrician. Cst. A. obtained written consents from the mother for release of medical information pertaining to both consultations. [ 5 ] On March 5, 2013 Cst.

A. advised A.K.’s family of the complaint and also that the complainant had consulted the two doctors in relation to the matter. A.K.’s family immediately retained counsel. On March 28, 2013, A.K. was charged. [ 6 ] On April 7, 2013, Cst. A. received one page of notes from the complainant’s family doctor, which she placed into an envelope and put into her file. This page was not included in the disclosure package she provided to the Crown which Crown Counsel passed on to Defence Counsel on April 10, 2013.

The disclosure package did contain copies of the mother’s executed consents to obtain medical information from the consulting physicians, but no notes or reports from either of them. [ 7 ] A.K. made a first appearance on May 7, 2013. Defence Counsel requested an early trial date, and with the Crown’s consent the matter was set for a three-day trial to begin on Monday, August 5, 2013. Prior to A.K.’s first appearance, his counsel had sought and obtained, also with the Crown’s consent, an order to exclude the public from the trial. [ 8 ] On June 3, 2013, Cst.

A. received notification from Crown Counsel that the trial would commence August 5, 2013 as well as a request for subpoenae to issue to the complainant, her mother and the officers involved in the investigation. Prompted by this communication, Cst. A. pursued the medical information. On August 1, 2013, Cst. A. received medical information from the hospital. When she reviewed her file on that date, she realized that the family doctor’s one-page note had not been included in the previously provided disclosure package. The following day, Cst.

A. delivered copies of the family doctor’s note and the hospital records to Crown Counsel’s office. Also on that day, Cst. A. told Defence Counsel, during a chance meeting at Provincial Court, of their existence. Cst. A. had still not received information from the pediatrician. [ 9 ] On August 5, 2013, both counsel, A.K., and the subpoenaed witnesses presented themselves at Provincial Court for trial. Crown Counsel gave the doctor’s note and hospital records to Defence Counsel. Due to this late disclosure neither counsel had prepared for a trial involving medical evidence, and an adjournment was requested.

Also on August 5, Crown Counsel requested Cst. A. to obtain reports from both the family doctor and the pediatrician, and advised Defence Counsel that reports from the two doctors were expected. The trial was set over to August 12, on the understanding that the defence may not be able to proceed at that time because of the recently disclosed medical information and the anticipated receipt of additional medical information which Defence Counsel characterized as “highly relevant”. [ 10 ] Cst. A. received the family doctor’s report on August 7 and the pediatrician’s C.V. and report on August 8.

The C.V. and both reports were disclosed to counsel forthwith. [ 11 ] Upon receipt of the pediatrician’s C.V. and report, Crown Counsel telephoned the pediatrician and discussed the information and opinions contained in her report. On August 9, 2013, Crown Counsel advised Defence Counsel that both the family doctor and the pediatrician would be called to testify and that she expected the pediatrician to say that her observations of the complainant’s physical

presentation “may be consistent with penetration” (as the report stated) although they could also be consistent with other sorts of injury. Defence Counsel advised Crown Counsel that she would be objecting to the pediatrician’s qualifications to give opinion evidence and the admissibility of her report. [ 12 ] The trial did not proceed on August 12, 2013. On August 13, 2013 A.K. filed an application for costs based on the late disclosure.

It was set to be heard on September 24, 2013, but was subsequently adjourned to be heard after the conclusion of the trial. [ 13 ] In the meantime, Crown and Defence Counsel were in discussions respecting the future course of the trial. Crown Counsel would not agree to proceed to trial without proffering the medical information, and Defence Counsel needed time to consider the defence position respecting it. The matter was called on October 13, 2013 and the trial was set to recommence on December 10, 2013.

A.K. retained his own expert respecting the proposed evidence from the pediatrician. [ 14 ] In November 2013, the Crown served the defence with notice that it would be calling the pediatrician as an expert witness and gave a

summary of her anticipated evidence, which included the opinions expressed in her report. The Trial [ 15 ] The trial recommenced on December 10, 2013. After the complainant testified, Defence Counsel asked Crown Counsel to terminate the prosecution on the basis that the complainant’s evidence contained inconsistencies and discrepancies. Crown Counsel declined to do so, as she had further evidence to call. Defence Counsel did not request a directed verdict. The trial continued. [ 16 ] The pediatrician testified on December 11, 2013.

Before she commenced her testimony, she advised Crown Counsel that “although she had expertise in the area of child sexual abuse, she was not an expert in the area”. Crown Counsel advised Defence Counsel of this information forthwith, and did not seek to qualify the pediatrician as an expert when she testified. Instead, the doctor testified (in voir dire ) as a fact witness. After the Judge ruled on the effect of the pediatrician’s evidence, the defence elected not to call its own expert witness, who had been present, to testify.

In the end, the Judge was left in a reasonable doubt about A.K.’s guilt, and she acquitted him on December 17, 2013. The Costs Application [ 17 ] A.K.’s costs application was heard on April 23, 2014 and the Judge filed her decision on June 10, 2014. In it, the Judge reviewed jurisprudence concerning both costs orders and the awarding of civil damages against the Crown under section 24(1) of the Charter . [ 18 ] The Judge ruled that Cst. A.’s failure to include the family doctor’s note in the disclosure package of April 2013 was a breach of A.K.’s right to disclosure guaranteed by

section 7 of the Charter , but found that it was inadvertent and that the circumstances were such that the non-disclosure did not constitute a marked and unacceptable departure from the reasonable standards expected of the prosecution if viewed in isolation from the remainder of the prosecution (paragraphs 69 to 70). The Judge did not specifically remark on the fact that Cst. A. had not followed up on her request for information from the pediatrician, which she had made in writing to the hospital and not the pediatrician directly on June 3, 2013.

The Judge went on to remark that when Crown Counsel saw the family doctor’s note on August 5, 2013 and determined that she needed additional medical information for the trial, the case A.K. had to meet had changed. The Judge was critical of Crown Counsel for failing “to act reasonably to see that the case would be ready for trial by the date scheduled” (paragraph 79), but did not identify how Crown Counsel failed to ready the case other than to say that “it appears that she did not meet with Cst.

A. before the trial date” (paragraph 75), inferring that had she done so, she would have been alerted to the existence of the doctor’s note and the other medical information requested but not yet received. The Judge characterized this conduct of Crown Counsel as a breach of A.K.’s Charter rights (without identifying which right and how it had been breached) but went on to rule that A.K. had disclosure of all the medical information “well in advance of trial” and had “had the opportunity to make full answer and defence” and that the late disclosure was therefore remedied by the adjournment.

She stated that “any additional remedy, particularly costs” would not have been appropriate “for the failure to disclose prior to August 5, 2013” (paragraphs 78-80). [ 19 ] The Judge addressed A.K.’s

section 11(

b) Charter right to be tried within a reasonable time saying at paragraph 81: Additionally, although the trial was delayed due to the late disclosure, I do not find that the delay resulted in a breach of the Defendant’s rights to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter , to the extent necessary to justify an award of costs. and again at paragraph 84: The trial as originally set for August 5, 2013 was clearly within a reasonable time. Although it may be that in overall terms, a trial date of December 10, 2013 may also not be unreasonable, given that the four month delay from August to December was solely caused by the failure of the Crown, without reasonable excuse, to be ready to proceed on August 5, 2014, there was a breach of the Defendant’s s. 11(

b) Charter rights. In all of the circumstances, again if this was the only issue, I would not see the breach as serious enough to merit an award of costs. [ 20 ] In paragraphs 88 to 93, the Judge was critical of Crown Counsel’s failure to “consider the evidence it had to tender and the prospects for conviction” and to meet with the pediatrician so as to assess her expertise and the opinions in her report before giving notice of expert evidence to Defence Counsel in November.

The Judge said the Crown conduct “although not deliberate, was serious and shows a failure from the outset to deal with these serious allegations in a competent, serious, timely and diligent manner”. She concluded at paragraph 95 that the Crown conduct was “a marked and unacceptable departure of the standard of care expected of the prosecution” and that it constituted abuse of process.

At paragraph 98 the Judge found that: … the threshold for prosecutorial misconduct warranting a s. 24(1) costs award had been met through the finding of a marked and unacceptable departure from the standard of care expected from the prosecution. Although the initial problems, which arose on August 5, 2013 could be said to have been adequately compensated by the adjournment if there had been no other serious breaches, the continued failure to handle the matter as required into the rescheduled trial were actions that were clearly wrong and an abuse of process.

and at paragraph 100: … A.K.’s rights under s. 7 and s. 11(

b) were breached and that this is one of the exceptional cases where an award of costs under s. 24(1)of the Charter is necessary. ISSUES [21] The central issue is whether the Judge erred in awarding costs to A.K. under section 24(1) of the Charter. In order to resolvethis question, it must also be determined whether the Judge erred in finding breaches of A.K.’s right to disclosure pursuant to

section 7 ofthe Charter and his

section 11(

b) right to be tried within a reasonable time, and whether there was abuse of process that gave rise to abreach of A.K.’s

section 7 Charter right. If A.K. did suffer a breach or breaches of his Charter rights, it must then be determinedwhether the breach or breaches meet the legal test for a costs award against the Crown. All of these issues involve applications of a legalstandard to the facts of this case and are therefore questions of law (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 20). ANALYSIS Costs against the Crown as a

section 24 Charter remedy [22] Section 24(1) of the Charter states: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [23] It is worth repeating that any person claiming a remedy under section 24(1) of the Charter must first prove, on a balance ofprobabilities, a breach of a Charter right (R. v.

Collins, (SCC), [1987] 1 S.C.R. 265 at p. 277). [24] In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 the Supreme Court held that courts of criminal jurisdictionhave the discretion to award costs against the Crown for breaches of a defendant’s Charter rights in the course of a prosecution.

However, Chief Justice McLachin made clear that the Crown “is not held to a standard of perfection, that costs “will not flow from everyfailure to disclose in a timely fashion”, and that costs awards are restricted “at a minimum to circumstances of a marked and unacceptabledeparture from the reasonable standards expected of the prosecution” (paragraph 87). This ruling has become the test for awarding costsagainst the Crown under

section 24 of the Charter. [25] The high bar required for awarding costs against the Crown in criminal litigation is a long-standing policy of Canadian criminallaw. It is based on the fact that the Crown prosecutes in the public interest and that it would not be proper for the laying of criminalcharges or the conduct of criminal prosecutions to be influenced by the threat of costs.

In other words, the law recognizes that the Crownis not an ordinary litigant like a plaintiff in a civil action who brings his or her action for reasons of personal interest, and that everyperson accused of an offence will incur non-compensable costs in defending him or herself regardless of whether he or she is convictedor acquitted. Lamer C.J. in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 described the policy as a “prevailing conventionof criminal practice” whereby “criminal defendants, whether successful or unsuccessful on the merits of their cases, would not generallybe entitled to costs” although “improper or oppressive Crown conduct or remarkable circumstances” could lead to a different result(para. 97). In Tele-Mobile Co. v.

Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305 the Supreme Court again explained that the policy is anecessary part of our criminal justice system which “functions for the good of all members of society” (paras. 55-57). (See also R. vRobinson, 1999 ABCA 367, 250 A.R. 201, paras. 29-30, and Canada (Attorney General) v. Foster (2001), (ON CA),274 D.L.R. (4th) 253, 215 C.C.C. (3d) 59, paras. 62-69 and 93-95.) Just as the Crown does not have to pay costs to an accused who issuccessful, neither does the Crown get costs from an accused who is convicted. [26] In

summary, awarding costs against the Crown as a section 24(1) Charter remedy is limited to cases in which a defendantproves a breach of a Charter right in circumstances of a marked and unacceptable departure from the reasonable standards expected ofthe prosecution. Did A.K. suffer a breach of his

section 7 right to disclosure? [27]

Section 7 of the Charter reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [28] It is settled law that an accused in a criminal prosecution is entitled to disclosure of the case he has to meet in order to vindicatehis or her right to make full answer and defence. This entitlement to disclosure is enshrined in the right to make full answer and defencewhich is a principle of fundamental justice under

section 7 of the Charter (R. v. Stinchcombe (SCC), [1991] 3 S.C.R.326 at p. 336). [29] In this case there is no question that the Crown failed to fulfill its duty to provide full disclosure to A.K. so as to enable him tomake full answer and defence at the originally scheduled trial, and that this failure resulted in a breach of A.K.’s

section 7 Charter right. Cst. A.’s failure to include the family doctor’s note in the disclosure package in April and her failure to follow up on her earlier requestfor information from the pediatrician and Crown Counsel’s failure to notice or follow up on the absence of medical information from thedisclosure package are the genesis of this breach. [30] The Judge found that Cst. A.’s failure was inadvertent. Despite the Judge’s finding that Cst.

A.’s failure was inadvertent, theJudge faulted Crown Counsel for failing to notice or follow up on the lack of medical information in the disclosure package when shereceived it in April 2013. Nevertheless, the Judge stated that disclosure failures prior to August 5, 2013 would not justify a costs award(paragraph 80).

[31] Disclosure is generally the responsibility of the Crown. In R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, the SupremeCourt stated that the term “the Crown” does not refer to all provincial and federal Crown entities. Rather, the Crown in a criminalprosecution is the prosecuting Crown, and all other Crown entities, including police, are third parties except when the police are actingdutifully to supply the Crown with the fruits of an investigation (paragraph 11).

For the purposes of disclosure in this case, the Crownencompasses both the police and prosecution services although these services are distinct entities in most other contexts. [32] The Judge’s finding that Cst. A.’s failure was inadvertent is not disputed. Neither is there dispute that Crown Counsel did notfollow up on the absence of medical information in the police file when it was provided to her in April 2013. Whether she did not noticethat the information was missing or whether she noticed that it was missing and thought that Cst.

A. had determined it to be of noconsequence and therefore not necessary to the prosecution, is not known. Whichever, if she had inquired of Cst. A. about the absenceof the medical information upon her review of the disclosure package in April or when she requested the subpoenae in May, Cst. A. mayhave been alerted to her own failures to disclose the family doctor’s notes and to follow up on her request for information from thepediatrician, and the disclosure problem may have been averted.

In this regard, Crown Counsel has a duty to make reasonable inquirieswhen put on notice of material in the hands of police or other entities that is potentially relevant to the prosecution or the defence(Quesnelle para. 12). I make no comment on whether the within circumstances would constitute notice to the Crown. In any event,there is no suggestion that Crown Counsel’s failure to follow up on the absence of medical information with the disclosure file was inany way the result of a deliberate or even a conscious decision.

In these circumstances, her failure can hardly be described as advertent,and in my view, is as inadvertent as the police officer’s failure. [33] At this juncture, I am obliged to note that Defence Counsel also failed to follow up on the lack of medical information in thedisclosure file, for she had the same disclosure package as Crown Counsel had. In this regard, Defence Counsel maintains that she wasneither obligated to do so or interested in doing so. [34] A criminal defendant’s responsibility for disclosure was addressed by the Supreme Court in R. v.

Dixon, (SCC), [1998] 1 S.C.R. 244, wherein the Court stated: Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel’s obligationto be duly diligent in pursuing disclosure.” The Court explained that when defence counsel becomes aware of information not disclosed by the Crown, he or she is obligated to takeappropriate action respecting that information, or otherwise live with the consequences (paragraphs 55-56). [35] More recently, the Ontario Court of Appeal considered this issue in R. v. Singh, 2016 ONCA 108.

In Singh, material cell phonerecords were not disclosed due to the case falling through the cracks as a result of multiple prosecutors being involved in it. The Crownhad promised and the defence had expected that the cell phone records would be disclosed, yet defence counsel remained silent whenthey were not. The Court held that the disclosure process engages both the Crown and the defence and it was an error for the trial judgeto fail to consider defence conduct in assessing the disclosure issue and determining where the Crown conduct appeared on the spectrum(paragraph 42). (See also R. v.

Morin, (SCC), [1992] 1 S.C.R. 771 page 793, R. v. Fattah, 2005 ABQB 523 and R. v.Khakh, 2013 BCSC 1658.) [36] In this case, Defence Counsel’s position, while understandable, was not without risk. While she may not have wanted to alertthe prosecution to a deficiency in its case, she took the risk that the prosecution could otherwise be alerted to the deficiency and attemptto rectify it before trial and that any rectification could change the case A.K. had to meet and require additional or different preparationfor his trial. That risk materialized.

Accordingly, the disclosure problem which caused adjournment of A.K.’s trial may also have beenaverted had Defence Counsel followed up with the Crown respecting the absence of medical information in the disclosure package. TheJudge did not consider this defence conduct before concluding that the late disclosure problem was “caused solely by the Crown withoutreasonable excuse”. To my mind her failure to consider this factor was an error. [37] In court on August 5, 2013, Defence Counsel characterized the undisclosed medical information in this case as “highlyrelevant”.

I agree it was relevant, and that it altered the case that A.K. had to meet at trial such that he required an adjournment toreassess his position. [38] Late disclosure necessitating an adjournment of trial is not an uncommon occurrence. Undisclosed information relevant to amatter before the court can surface before or during (and even after) trial to the benefit or detriment of the Crown or the Defence.

Theevidence to be called at trial does not become fixed at the point in time when a charge is laid or when initial disclosure is provided, andrelevant evidence that becomes known, discovered, or otherwise available following initial disclosure is not automatically inadmissibleby virtue of its late appearance. [39] Remedies for late disclosure were addressed by the Supreme Court in R. v. O’Connor, (SCC), [1995] 4 S.C.R.411.

In O’Connor the Court held, at paragraph 83, that absent reason to do otherwise, a disclosure order and an adjournment will be theusual remedy for late disclosure: … In such circumstances, [of late or insufficient Crown disclosure and a consequent s. 7 breach], the court must fashion a just andappropriate remedy, pursuant to s. 24(1) . Although the remedy for such a violation will typically be a disclosure order and adjournment,there may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of thejustice system is irremediable.

In those "clearest of cases", a stay of proceedings will be appropriate. [40] In R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, the Supreme Court again addressed

section 24 Charter remedies forbreaches of the

section 7 right to disclosure. The trial judge in Bjelland had excluded evidence from trial on the basis that its latedisclosure prevented the accused from making full answer and defence. On the Crown’s appeal, the Ontario Court of Appeal found thatthe trial judge had erred by failing to consider whether a less severe remedy than exclusion of evidence could cure the harm done to theappellant by the late disclosure while still preserving the integrity of the justice system.

The Supreme Court agreed, saying that anyprejudice to the appellant’s right to make full answer and defence could be remedied through an adjournment and disclosure order asthere was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system.

[41] In this case, the breach of A.K.’s Charter right to disclosure was inadvertent. Once the information was discovered to bemissing by Cst. A. on August 1 and by Crown Counsel on August 5, 2013, it was obtained in very short order and disclosed forthwith. The trial was briefly adjourned so that both the Crown and Defence could assess their positions respecting the new disclosure, and thenfurther adjourned so as to enable A.K. to make full answer and defence to the prosecution’s case at trial.

A.K. does not argue that he wasunable to make full answer and defence at trial or that his trial was not otherwise fair. [42] The Judge concluded that “on its own” the breach of A.K.’s Charter right to disclosure was remedied by the adjournment andan award of costs would not be indicated. I take from her conclusion that she was also of the view that the circumstances of the latedisclosure did not compromise the integrity of the justice system. I agree with the Judge in these regards. Did A.K. suffer a breach of his

section 11(

b) Charter right to be tried within a reasonable time? [43]

Section 11(

b) of the Charter reads: 11 Any person charged with an offence has the right … (

b) to be tried within a reasonable time; [44] A.K.’s trial, originally set to commence three months after his first appearance on August 5, 2013, was adjourned for fourmonths to December 10, 2013 because of the late disclosure. [45] The controlling authorities on the application of

section 11(

b) of the Charter to a set of facts remain R. v. Askov, (SCC), [1990] 2 SCR 1199 and Morin. In Askov, the Supreme Court identified the length of delay, the explanation for delay, waiverby an accused, and prejudice to the defence as factors for consideration in determining whether an accused has suffered a breach to his orher Charter right to be tried within a reasonable time. In Morin, the Court explained that the first factor - the length of delay – is athreshold consideration to determining whether there is a

section 11(

b) breach: An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter . The applicant has the legal burden ofestablishing a Charter violation. The inquiry … should only be undertaken if the period is of sufficient length to raise an issue as to itsreasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unlessthe applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. … (page 789) [46] This Court considered

section 11(

b) in R. v. Reid (1999), (NL CA), 171 Nfld. & P.E.I.R. 143 (Nfld. C.A.). In Reid, Wells C.J.N.L. considered the length of delay as a threshold issue in accordance with Morin, stating at paragraph 14 “If thelength of time involved is not exceptional bearing in mind what might reasonably be expected in the case of such a charge, then no issueas to reasonableness is raised and that is the end of the matter.” [47] The

section 11(

b) jurisprudence from this jurisdiction which has found unreasonable delay has typically involved periods oftime exceeding 19 months. In this regard see R. v. Lambert (1992), (NL CA), 99 Nfld. & P.E.I.R. 165 (Nfld. C.A.),R. v. Taylor 2010 NLCA 26, R. v. Cheng, 2010 NLCA 27, and R. v. Hayes, 2010 NLTD 92. [48] In this case the trial was delayed by four months due to the late disclosure, making the time between when A.K. was chargedand his acquittal a total of nine months.

In my view, this is a short period of time which does not raise an issue of reasonableness evenconsidering, but without deciding, that young persons like A.K. should be treated more tenderly than adults in an analysis under section11(b). (In this regard see R. v. T.R. (2005), (ON CA), 75 O.R. (3d) 645, 197 C.C.C. (3d) 14 (Ont. C.A.).) [49] In

summary, the delay in this case does not raise an issue of reasonableness. While this could legitimately signal the end of theinquiry, I would not be prepared to do so if A.K. were alleging that he had been prejudiced in his ability to make full answer and defenceas a result of the delay. However, A.K. is not alleging such prejudice. [50] In the result, there is no basis to conclude that A.K. suffered a breach of his

section 11(

b) Charter right, and therefore no basison which to grant him a section 24(1) remedy for unreasonable delay. Accordingly, the Judge’s conclusions that A.K.’s

section 11(b)Charter right was breached and that the breach supported an award of costs pursuant to section 24(1) are in error, and must be set aside. Was there an abuse of process which violated A.K.’s

section 7 Charter right? The Law [51] It is settled law that demonstrated abuse of process in a criminal prosecution is a violation of the

section 7 Charter right toliberty (O’Connor). In O’Connor, L’Heureux-Dubé J. described the two categories of abuse of process arising from Crown conduct as1) prosecutional conduct affecting the fairness of a trial and 2) prosecutional conduct that “contravenes fundamental notions of justiceand thus undermines the integrity of the judicial process” (paragraph 73). Justice L’Heureux-Dubé also said that abuse of process mayengage other Charter rights and cited the

section 11(

b) right to be tried within a reasonable time as an example. [52] The Supreme Court considered abuse of process in the context of Crown conduct in R. v. Power, (SCC),[1994] 1 S.C.R. 601. Power involved a Crown decision to call no further evidence following the trial judge’s exclusion of evidence as aremedy for a breach of the accused’s 10(

b) Charter right. On a Crown appeal, the accused pleaded that the Crown’s decision to call no

further evidence and proceed straight to an appeal when it could have proffered other evidence in support of a conviction was an abuseof process.

The Supreme Court ruled that Crown Counsel’s decision not to call further evidence so as to be able to expeditiously appealthe judge’s evidentiary ruling was not an abuse of process, saying that there was “not one iota of evidence” that it was prompted by badfaith or an improper motive, or motivated by an intention to frustrate the administration of justice or even to circumvent the rules ofcriminal law regarding interlocutory appeals, and that there was no misconduct that shocked the community's sense of fairness so as toestablish abuse of process. [53] The Supreme Court’s comments in Miazga v.

Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, a civil suit alleging maliciousprosecution, are useful to understanding the doctrine. In Miazga the Court likened abuse of process to the tort of malicious prosecution,saying that both are invoked as remedies “when a Crown prosecutor’s actions are so egregious that they take the prosecutor outside hisor her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longerjustified”.

The Court went on to say that the bar is high to prove either, and that both abuse of process and malicious prosecution havebeen narrowly crafted employing stringent tests to ensure that liability will attach in only the most exceptional circumstances in orderthat Crown discretion remains intact (paragraph 51). [54] R. v. Nixon, 2011 SCC 34 , 2011 S.C.C. 34, [2011] 2 SCR 566 is most helpful in determining the existence of abuse ofprocess.

In Nixon, the Supreme Court considered whether the exercise of Crown discretion to repudiate a plea agreement so underminedthe integrity of the judicial process as to establish abuse of process and warrant a consequent stay of proceedings.

At paragraph 38, theCourt explained that abuse of process is not measured on a sliding scale of harm to accord with a sliding scale of remedies under section24(1): [38] Thus, in defining what constitutes a violation, it is important to recall what kind of harm the common law doctrine of abuse ofprocess was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy.

Inother words, while s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made outby demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice system. Achieving theappropriate balance between societal and individual concerns defines the essential character of abuse of process. At paragraphs 39-41, the Nixon Court elaborated on the two categories of abuse of process set out in O’Connor: [39] Under the first category of cases, the concern is about the fairness of the accused’s trial.

Establishing prejudice of the requisitedegree is key to meeting the test; proof of prosecutorial misconduct, while relevant, is not a prerequisite: R. v.

Keyowski, (SCC), [1988] 1 S.C.R. 657. … [40] The Court reiterated that the test for abuse of process was whether “compelling an accused to stand trial would violate thosefundamental principles of justice which underlie the community’s sense of fair play and decency”, or where the proceedings are“oppressive or vexatious” (pp. 658-59, quoting from Jewitt, at pp. 136-37) … [41] Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative.

Of course, inmost cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way tosuccessfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an acttending to undermine society’s expectations of fairness in the administration of justice. This essential balancing character of abuse ofprocess under the residual category of cases was well captured by the words of L’Heureux-Dubé J. in R. v. Conway, (SCC), [1989] 1 S.C.R. 1659.

She stated the following: Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with theprosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such adegree that to allow it to proceed would tarnish the integrity of the court. ...

Consequently, where the affront to fair play and decency isdisproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served bystaying the proceedings. [Emphasis added; p. 1667.] [55] The Court framed the question to be decided in Nixon as “was the Crown’s repudiation conduct so unfair or oppressive, … or sotainted by bad faith or improper motive, that to allow the Crown to now proceed would tarnish the integrity of the judicial system”(paragraph 59), and went on to explain that an applicant alleging abuse of process has the burden of establishing an evidentiary thresholdbefore a court must embark on a review of the prosecutional conduct (paragraphs 60-62). [56] The Nixon Court ultimately concluded that there was no abuse of process in the Crown’s decision to resile from the pleaagreement, saying: [68] … In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimatedecision to repudiate, the decision to proceed with the prosecution is the Crown’s alone to make.

Reasonable counsel may indeed, andoften do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, in good faith,determined that Crown counsel’s assessment of the strength of the evidence was erroneous and, on that basis, having regard to theseriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges.

This can hardly be regarded as evidence of misconduct. and went on to endorse the words of Paperny J.A. of the Alberta Court of Appeal: [69] … this is not a case where the repudiation was done “unfairly” or when the discretion of the Attorney General was exercised“irrationally, unreasonably or oppressively”. … The ADM’s conduct, viewed in its totality, cannot be characterized as unfair,unreasonable, oppressive or irrational. The high threshold to find abuse of process has not been met here. [57] In R. v.

Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 the Supreme Court again considered abuse of process arising from Crownconduct. The conduct involved was the Crown’s tendering of prior breathalyzer convictions to be taken into account on the sentencingof Mr. Anderson for a current conviction without consideration of Mr. Anderson’s aboriginal status. The Court ruled that the tendering

of Mr. Anderson’s prior convictions was an exercise of prosecutional discretion, and that the Crown was not obliged to consider Mr. Anderson’s aboriginal status in doing so, and confirmed that the exercise of prosecutional discretion is reviewable only for abuse of process. The Court summarized the doctrine at paragraphs 49 and 50: [49] The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger , this Court used the term “flagrant impropriety” (para. 49).

In Nixon , the Court held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para. 64). The Court also referred to “improper motive[s]” and “bad faith” in its discussion (para. 68). [50] Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. … [ 58 ] In

summary, in order to establish residual category abuse of process arising from Crown conduct, a sufficient degree of improper motive or bad faith, or unfair, oppressive, vexatious or egregious conduct that constitutes an affront to “fair play and decency” or “shocks the community’s sense of fairness” so as to “contravene fundamental notions of justice and undermine the integrity of the judicial process” is required.

Application of the Doctrine in this Case [ 59 ] Because A.K. is not alleging that he was compromised in his ability to make full answer and defence to the charge and there is no suggestion that he did not otherwise have a fair trial, the abuse of process at issue in this case falls into the residual category.

Accordingly, it requires Crown conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process” to establish it. [ 60 ] Review of the Judge’s decision shows that she identified the following Crown conduct as wanting: 1. “the failure generally to consider the evidence it had to tender and the prospects for conviction and to properly prepare for trial, if there was to be one, before the trial commenced” (paragraph 88); 2. “the failure to meet with Cst.

A. in the lead up to the August 5, 2013 trial date to prepare for trial” (paragraph 75); 3. “the failure to meet with the pediatrician to discuss the specialist’s opinion and expertise prior to the trial date” (paragraph 90); 4. “the failure to assess the pediatrician’s evidence before giving notice on November 7, 2013 to the defence that expert evidence would be called” (paragraph 91); 5. the failure to ”gather [the Crown’s] evidence and rationally assess it” (paragraph 90); and 6. “the failure to properly prepare for the initial trial date and continuing the general failure to prepare the case into the trial as rescheduled” (paragraph 98).

The Judge also said at paragraph 93: The misconduct which although not deliberate, was serious and shows a failure from the outset to deal with these serious allegations in a competent, serious, timely and diligent manner. [ 61 ] The Judge did not determine whether the Crown conduct she found wanting resulted from the exercise of Crown discretion or tactical decisions made by Crown Counsel.

The distinction between the two is important because the exercise of prosecutional discretion can only be reviewed on the standard of abuse of process, whereas tactical decisions made by the Crown are subject to a wider range of review. That is to say that in this case, Crown conduct based on tactics which resulted in a breach of A.K.’s

section 7 Charter right could theoretically justify a costs order under section 24(1) in the absense of abuse of process, whereas Crown conduct resulting from the exercise of Crown discretion cannot constitute a breach of A.K.’s

section 7 Charter right unless abuse of process is established ( Anderson at paragraphs 36 and 44 ; and Krieger v.

Law Society of Alberta, 2002 SCC 65 , [2002] 3 S.C.R. 372 at paragraphs 47-48 ). [ 62 ] What constitutes an exercise of prosecutional discretion is settled law, summarized at paragraphs 40, 44, and 45 of Anderson : [40] The Court went on to provide the following examples of prosecutorial discretion: whether to bring the prosecution of a charge laid by police; whether to enter a stay of proceedings in either a private or public prosecution; whether to accept a guilty plea to a lesser charge; whether to withdraw from criminal proceedings altogether; and whether to take control of a private prosecution (para. 46).

The Court continued: Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it.

Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion.

Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis added; emphasis in original deleted; para. 47.] … [44] In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” ( Krieger , at para.

47 ). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” ( Krieger , at para. 44 , citing Power , at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v.

Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566 ); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice. [45] In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making.

That said, care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The distinction between prosecutorial discretion and the constitutional obligations of the Crown was made in Krieger , where the prosecutor’s duty to disclose relevant evidence to the accused was at issue: In Stinchcombe , supra , the Court held that the Crown has an obligation to disclose all relevant information to the defence.

While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty . [Emphasis added; para. 54.] Manifestly, the Crown possesses no discretion to breach the Charter rights of an accused.

In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence. [ 63 ] There is no suggestion by A.K. that any of the impugned Crown conduct was deliberate or calculated to either enhance the Crown’s position or undermine A.K.’s position. The Judge also found that the Crown conduct was not deliberate. I agree.

However, A.K. suggests that the defence’s pre-trial objections to the pediatrician’s evidence made Crown Counsel’s decision to proffer it a tactical decision as opposed to an exercise of prosecutional discretion. As well, the Judge insinuated at paragraph 90 that Crown Counsel’s determination to tender the pediatrician’s evidence as expert evidence was somehow made worse by the “repeated communications from defence counsel that she would be objecting to the pediatrician’s qualifications”. I do not agree.

In my view, a tactical decision would involve, at a minimum, a deliberate or conscious decision by counsel to engage in conduct calculated to enhance the Crown’s chance of success at trial or otherwise gain a strategic advantage over or undermine a defendant’s position in the case. Moreover, Crown counsel are not obliged to accede to defence arguments in the course of trial, just as defence counsel are not obliged to accede to Crown arguments in the course of a trial. And repeated objections do not convert an exercise of prosecutional discretion into a tactical decision.

The trial process is adversarial in nature, and more often than not it involves counsel taking adverse positions which require a judge’s ruling to resolve. In this case, Defence Counsel’s attempt to convince Crown Counsel not to proffer the pediatrician’s evidence was fair advocacy on behalf of her client, and in accordance with her professional duty.

Likewise, Crown Counsel’s assessment of the doctor’s evidence and her decision to proffer it at trial were part of her ongoing assessment of the case and made in accordance with her professional duty. [ 64 ] Assessing the evidence of a case, considering its prospects for conviction, and preparing a case for trial are Crown tasks which inform the decisions to prosecute and continue a prosecution. They are part and parcel of the nature and extent of a prosecution.

Crown Counsel’s assessment of the pediatrician’s evidence, her preparation for it to be tendered at trial and her decision to give notice to the defence that she would be tendering it at trial, and her subsequent decision not to tender it as expert evidence, were an inherent part of her assessment of the case and decision to continue the prosecution. This is not to say that preparation for and decisions taken on a case are always pursuant to the exercise of prosecutional discretion.

It is only to say that the preparation for and decisions taken by Crown Counsel in this case were pursuant to her exercise of prosecutional discretion for there is no suggestion that by doing so she sought to gain a strategic advantage over A.K. or undermine his position. [ 65 ] Accordingly, the Crown conduct impugned by the Judge was not tactical conduct.

Rather, it was conduct directly related to the nature and extent of the prosecution, and therefore an exercise of prosecutional discretion reviewable only for abuse of process. [ 66 ] The Judge stated at paragraph 95 that there was an abuse of process which violated A.K.’s

section 7 right. However, she does not explain how or why she reached this conclusion, and nowhere in her decision does she set out the test for abuse of process and apply it to the Crown conduct she found wanting. Although the Judge referred to the Nixon and Krieger cases in her review of jurisprudence, she does not otherwise indicate an awareness of abuse of process as a legal doctrine, the legal standard to be met to establish it, or its relationship to

section 7 so as to justify a section 24(1) remedy of costs against the Crown. Her bare conclusion at paragraph 95 appears to rest on her view that Crown Counsel’s conduct showed “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. Whether Crown conduct shows a marked and unacceptable departure from the reasonable standards expected of the prosecution is the test for awarding costs against the Crown under section 24(1) of the Charter ( 974649 ). It is not the test for establishing abuse of process.

The Judge appears to have conflated the two tests, and concluded that there was abuse of process because, in her view, the Crown conduct met the test for an award of Charter costs. The Judge’s conflation of these tests and application of the wrong law is legal error. [ 67 ] I am also compelled to note that the Judge’s decision does not disclose an analysis of how and why the conduct of the Crown she found wanting met even the test for an award of Charter costs. Although she faulted Crown Counsel for lack of preparation, a failure to rationally assess the case, and failures to meet with Cst.

A. and the pediatrician, she did not set out the basis for these findings nor did she give reasons why this conduct was “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. [ 68 ] The Judge’s errors could, in an appropriate case, result in this Court remitting the matter to Provincial Court for determination based on application of the correct law. However, the circumstances of this matter show that it is feasible, practical, and within the interests of justice, in accordance with the principles set out in Matchim v.

BGI Atlantic Inc. , 2010 NLCA 9 , 294 Nfld. & P.E.I.R. 46, for this Court to apply the correct law to the facts of the case so as to determine if abuse of process is established.

[69] The Crown conduct the Judge identified as wanting can be summarized as the failures of Crown Counsel to meet with Cst. A.before the original trial date and to meet with the pediatrician before the day on which she testified, and that Crown Counsel did notrationally assess the case or prepare it for trial both initially and on a continuing basis. [70] The fact that Crown Counsel did not meet with Cst. A. prior to the initial trial date or the pediatrician until just prior to her courtappearance appears to me to be a long reach to find something wrong with Crown Counsel’s conduct.

This is particularly so given thatthere is no indication that meetings, as opposed to written or verbal communications, are the standard by which criminal lawyerstendering evidence might be measured. While it might be good practice to meet with witnesses in advance of trial, it is frequently notpossible to do so due to scheduling difficulties and/or the cost implications of doing so. This is true for both the Crown and defence. Even if it had been established standard practice to “meet” with Cst.

A. and the pediatrician (as opposed to communicating with them inwriting or by phone which is what happened in this case), failing to do so hardly rises to the level of bad faith, improper motive, orotherwise egregious conduct required to meet the test for abuse of process. [71] The Judge found Crown Counsel’s assessment of the pediatrician’s evidence faulty. Crown Counsel discussed thepediatrician’s qualifications and report with her by telephone before preparing the Notice that she would be tendering that evidence attrial.

The pediatrician described herself as being a Child Protection physician and having expertise in the area. Her report containedopinions directly relating to this area of medicine and which were based on the complainant’s consultation with her. Subsequent receiptof the doctor’s C.V. confirmed her extensive experience as a Child Protection physician responsible for “medical evaluations inconjunction with team assessment of suspected child abuse”. In my view, these circumstances make it understandable that CrownCounsel would rely on the pediatrician’s report as legitimate opinion from a qualified expert.

Moreover, I am not at all convinced thatthe pediatrician, who professed expertise in the area of child sexual abuse but did not consider herself an expert in the area, would nothave been able to testify within the limits of her expertise as an expert in this case. The Defence expert, according to the record, was apathologist. In all likelihood he would not have been qualified as an expert in child sexual abuse either, although his expertise inpathology could well have qualified him to give expert opinion concerning the complainant’s physical presentation in this case.

I alsonote that even if Crown Counsel had met with the pediatrician (as opposed to communicating with her by telephone and in writing), thereis no guarantee that the doctor would have said at that time “that although she had expertise in the area, she was not an expert”. Thesame goes for the Judge’s concern that Crown Counsel had not met with Cst. A. prior to the initial trial date. The fact that medicalinformation was missing from the disclosure had just as much chance of being discovered in a telephone conversation or by reason of awritten communication as in a meeting, so a meeting with Cst.

A. would not necessarily have guaranteed its discovery. [72] The Judge did not explain how she reached the conclusion that Crown Counsel failed to properly assess the case. There was noevidence which could support a finding that Crown Counsel did not assess the case, or failed to carry out certain duties respecting it.

Itappears as though the Judge, with the benefit of having seen how the evidence unfolded at trial, formed the opinion that it was obviousfrom the start that there was no reasonable likelihood of conviction, and concluded that Crown Counsel would have been of the sameopinion if she had “properly assessed the case” so therefore she must not have done so. [73] The Judge also faulted Crown Counsel for lack of preparation of the case. The record demonstrates that Crown Counsel wasattentive to the file from day one.

She prepared Crown applications, provided initial disclosure to the Defence, handed Defenceapplications and consented to them when appropriate, arranged for the timely subpoenae of witnesses for trial, reviewed the audio andvideo recordings of the complainant’s statement, met with the complainant, her mother and her counsellor as required, arranged for thereceipt of medical reports once aware of the potential evidence and disclosed them forthwith to Defence Counsel, reviewed thepediatrician’s evidence with her, prepared the required notice of expert evidence, and communicated with Defence Counsel throughout,all in a timely fashion.

There is no suggestion that she did not respond to Defence Counsel’s communications or to anyone else involvedin the case at anytime, or that she was evasive or unprofessional at any time in her handling of the file. This is not the picture of a CrownCounsel who failed to prepare the case. Once again, the Judge appears to have surmised that Crown Counsel had not properly preparedthe case because if she had done so, she would not have brought or continued the prosecution. [74] In this case, like in Power, there is not one iota of evidence that Crown Counsel’s conduct was prompted by bad faith orimproper motive.

Nor is there any basis on which to conclude that Crown Counsel engaged in oppressive or vexatious conduct. Whilethese proceedings must surely have been difficult for A.K. and his family, there was nothing about the Crown’s conduct of them that wasunfair, oppressive, vexatious, or in any way egregious. In short, there is no Crown conduct that could reasonably be said to constitute anaffront to fair play and decency or undermine the integrity of the justice system. The test for abuse of process is not met. [75] In the result, there is no abuse of process and no breach of A.K.’s

section 7 right to liberty, and no basis on which to award aCharter remedy under section 24(1). Accordingly, the Judge’s conclusion that A.K.’s

section 7 Charter right was breached by reason ofabuse of process and that the breach supported an award of costs pursuant to section 24(1) are in error, and must be set aside. [76] The question remains whether the breach of A.K.’s

section 7 Charter right to disclosure warrants an award of costs against theCrown. [77] As indicated above, the breach was inadvertent, it did not prejudice A.K. in his ability to make full answer and defence at trialor render the proceedings against him unfair, and on its own, would not warrant a costs award against the Crown. I agree, for it has notbeen demonstrated that the inadvertence involved in the disclosure breach comes anywhere close to the “marked and unacceptabledeparture from the reasonable standards expected of the prosecution” required to justify an award of costs (974649 paragraph 87).

Inmy view, the adjournment provided a “just and appropriate” remedy for the breach of A.K.’s Charter right to disclosure in accordancewith the direction set out in O’Connor and Bjelland, and other relevant jurisprudence. [78] Singh is instructive in this regard. In Singh the Ontario Court of Appeal set aside a section 24(1) award of costs against theCrown where the breach of the defendant’s Charter right to disclosure was unintentional, inadvertent and did not involve exceptionalcircumstances, and the award was made without consideration of defence inaction respecting disclosure. Likewise in R. v.

Leduc (2003), (ON CA), 66 O.R. (3d) 1, 176 C.C.C. (3d) 321(Ont. C.A.) the same appellate court set aside a section 24(1) costsaward for an inadvertent breach of an accused’s

section 7 disclosure right. In R. v. Canadian Broadcasting Corporation, 2007 NLCA62, 270 Nfld. & P.E.I.R. 117, this Court set aside a section 24(1) costs order made against the Crown. Cameron J.A. did so on the basis

that the breach of the Charter right to disclosure in that case did not involve conduct that was a serious and marked departure from that expected of the prosecution, in accordance with 974649 . [ 79 ] The Judge analogized this case to R. v. Olarte , [2005] O.J. No. 6048 , and relied on it in ordering costs against the Crown. In my view, A.K.’s situation is distinguishable in several respects from that of Mr.

Olarte, among which are that Olarte floundered through the court system for two years with no Crown counsel at the helm and that there were many requests for disclosure that went unanswered for months resulting in a two-year delay and arguably incomplete disclosure at trial. A.K.’s facts are all together a far cry from the Olarte facts. [ 80 ] In the result, the circumstances of A.K.’s disclosure breach, already remedied by disclosure and an adjournment so A.K. could make full answer and defence at trial, do not warrant an award of costs against the Crown under section 24(1) of the Charter.

SUMMARY AND DISPOSITION [ 81 ] In

summary, the Judge did not err in concluding that A.K.’s

section 7 Charter entitlement to disclosure was breached and in granting an adjournment so that A.K. could know the case he had to meet at trial. However, she erred in concluding that A.K.’s

section 11(

b) Charter right was breached, that A.K. suffered a breach of his

section 7 Charter right on the basis of abuse of process, and in awarding costs against the Crown as a section 24(1) Charter remedy. [ 82 ] Accordingly, the costs award must be set aside. [ 83 ] Given the result, it is not necessary to consider whether the particular costs ordered to be paid by the Crown were appropriate for a costs order if one had been justified. Nevertheless, I am compelled to point out that there is no indication that the defence decision to retain its own expert witness to respond to the pediatrician’s proposed expert evidence was necessitated by the delayed disclosure.

Rather, it appears as though A.K. would have retained his own expert even if the medical evidence had been disclosed in the original disclosure. Accordingly, the costs related to the retention of A.K.’s expert would have been incurred in any event. [ 84 ] In the result, I would allow the Crown’s appeal and vacate the Judge’s costs order in the Provincial Court. ________________________________ L. R. Hoegg J.A. I concur: _____________________________ C. W. White J.A. I concur: _____________________________ M. F. Harrington J.A.