Docket: CACR 2039 Her Majesty the Queen Appellant - v. -, 2012 SKCA 28

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 28 Date: 20120305 Between: Docket: CACR 2039 Her Majesty the Queen Appellant - and - Wayne Patrick Pidskalny Respondent Coram: Cameron, Lane, and Herauf JJ.A. Counsel: Anthony B. Gerein for the Appellant The respondent in person

Appeal: From: 2011 SKQB 256 Heard: March 5, 2012 Disposition: Appeal Allowed Reasons: March 5, 2012 By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] This is an appeal by the Attorney General from an award of costs against the Crown in interlocutory proceedings related to theprosecution of the respondent on an indictment charging him with aggravated assault. The award was made in the Court of Queen’sBench in the context of an application by the respondent under section 24(1) of the Charter to compel the Crown to comply with its dutyof disclosure in keeping with R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326. More specifically, the application was tocompel the Crown to enquire of the police whether they had any records pertaining to past altercations involving the complainant and, ifso, to disclose such records. The application was allowed, over the objections of Crown counsel, and in consequence the Court awardedcosts against the Crown in the amount of $3,500. [2] The Attorney General brought the appeal, subject to obtaining leave to do so, pursuant to

section 676.1 of the Criminal Code. Theappeal does not extend to the order requiring the Crown to undertake the enquiries requested by the respondent and to disclose theresults. There is no right of appeal from that order. Hence the appeal is confined to the award of costs.

Even so, and in light of thecircumstances, we have decided to grant leave to appeal. [3] The main ground of appeal is that the award was made in error inasmuch as the conduct of Crown counsel in refusing to undertakethe enquiries requested by the respondent was not such as to warrant in principle an award of costs against the Crown. [4] Counsel for the Attorney General acknowledges that judges acting on the authority of section 24(1) of the Charter are empoweredto award costs against the Crown in the context of proceedings to enforce compliance with the Crown’s obligation to disclose: R. v.974649 Ontario Limited, 2001 SCC 81, [2001] 3 S.C.R. 575.

However, as pointed out by counsel, the exercise of this power is restrictedby the following principle referred to by the Supreme Court of Canada in that case: 87 …the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptabledeparture from the reasonable standards expected of the prosecution. [5] This principle, which serves to circumscribe the discretion of a judge in awarding costs against the Crown on a section 24(1)application to enforce compliance with the disclosure obligations of the Crown, has since gained further acceptance, as it did, forexample, in R. v.

Bhatti, 2006 BCCA 16, 204 C.C.C. (3d) 463; R. v. Sweeny, 2003 MBCA 127, 179 C.C.C. (3d) 225; R. v. Leduc (2003), (ON CA), 176 C.C.C. (3rd) 321, 18 C.R. (6th) 167 (Ont. C.A.); R. v. Kelln, 2003 SKQB 348, 236 Sask. R.167; and R.v. Abrey, 2007 SKQB 213, 297 Sask.

R. 313. [6] Turning to the present case with this in mind, the cost-related question before the Court of Queen’s Bench was whether the refusalof Crown counsel to make the enquiries requested by the respondent amounted to “a marked and unacceptable departure from thereasonable standards expected of the prosecution.” Unfortunately this question was not addressed. It should have been, because theassessment called for by the question is fundamental to the exercise of the discretionary power to award costs against the Crown in casessuch as these.

The upshot of the failure to address the question in the court below is that we must address it and decide the matter afresh.

[7] The demand for disclosure, so to speak, was made up of two parts. The first part demanded the Crown “inquire” of a number ofpolice forces, or police force detachments, in Saskatchewan “as to the existence” of records in their possession pertaining to past“altercations” involving the complainant, and, if any such records were found to exist, to disclose them to the defence. One such enquirywas expected to be made of the Saskatoon Police Service to determine if it had any record of an altercation involving the complainantthat may have occurred in a Saskatoon night club sometime in 2006.

Another was expected to be made of the RCMP detachments in eachof Lumsden and Regina to determine if either had (

a) any record of an altercation involving the complainant that occurred at the CravenJamboree in 2009 and (

b) any other records of any other altercations involving the complainant. [8] The second part demanded the Crown “inquire” of the Regina Police Service “as to the existence” of any “documents, emails,reports or memos of any kind” relating to any member of the police service having directed a named member not to speak to the defenceabout “events” involving the complainant that the named member had “witnessed while off duty.” No particulars of these “events”appear in the record, but it seems they did not pertain to the events giving rise to the charge against the respondent.

At least there is noreason to suppose they did. [9] Confronted with such demands, Crown counsel informed defence counsel that the Crown knew nothing of these matters, had nosuch records in its possession, doubted the relevance of mere “altercations”, and thought that, since such records, if they existed, were inthe possession of third parties, the defence might want to make an O’Connor application, meaning an application pursuant to R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411, for the production of documents in the hands of third parties.

Defence counselthought otherwise and therefore proceeded with a Stinchcombe application to enforce compliance with the demand. [10] Having regard for the nature and quality of the demand, the Attorney General suggested on appeal that Crown counsel had areasonable basis for resisting the demand on the basic premise it appeared to amount to little more than a “fishing expedition”, as in R. v.Chaplin, (SCC), [1995] 1 S.C.R.727 and R. v. Fitch 2006 SKCA 80, 210 C.C.C (3d) 205.

There is much to be said forthis idea, though the question before us is not whether the demand did or did not amount to a fishing expedition or was otherwisemisconceived. That is not the question before us, because the validity of the order compelling the Crown to accede to the demand is notunder appeal.

Rather, the question is whether the demand was capable of being reasonably seen by a reasonable prosecutor to extendbeyond the limits of the Crown’s duty to disclose, and to so extend beyond the limits as to give rise to a reasonable basis for resisting thedemand, consistent with the responsible discharge of the duties of Crown counsel. [11] That said, we are of the view the demand was genuinely questionable, given the nature and quality and scope of it.

It was sobroadly and generally cast, and so speculative, as to invite genuine concern about whether it exceeded the limits of the Crown’s duty ofdisclosure or, in other words, about what might reasonably be expected of Crown counsel in the discharge of the Crown’s duty todisclose. This concern, we might add, can reasonably be seen to have extended beyond this case to others of a like kind, given the scopeof the demand, coupled with its nature and quality.

Hence, we are of the opinion that, in the circumstances of the case, the conduct ofCrown counsel in resisting the demand did not amount to a “marked and unacceptable departure” from the reasonable standards expectedof the prosecution. [12] For essentially these reasons, then, we have decided to allow the appeal and set aside the award of costs against the Crown. Therewill be judgment accordingly, but with no order for costs on appeal.