R v Kamara, 2023 SKCA 112

“Schwann J.A” Schwann J.A. “Barrington-Foote J.A.” Barrington-Foote J.A. “Drennan J.A” Drennan J.A. Court of Appeal for Saskatchewan Docket: CACR3666 Citation: R v Kamara , 2023 SKCA 112 Date: 2023-10-04 Between: His Majesty The King Appellant (Applicant) And Saidu Kamara Respondent (Respondent) Before: Schwann, Barrington-Foote and Drennan JJ.A.

Disposition: Appeal allowed (orally) Written reasons by: The Court On appeal from: CRM-SA-00266-2021 (Sask KB), Saskatoon Appeal heard: September 21, 2023 Counsel: Wade McBride, K.C., and Angela Goodman for the Appellant Saidu Kamara on his own behalf The Court [ 1 ] On September 15, 2022, a judge of the Court of King’s Bench made an order pursuant to s. 24(1) of the Charter that the Crown pay costs in favour of the respondent, Saidu Kamara: R v Kamara (15 September 2022) Regina, CRM-SA-00266-2021 (Sask KB). That remedy was based on the trial judge’s determination that the Crown had breached Mr.

Kamara’s s. 7 Charter rights by failing to disclose information obtained from cell phones seized in the course of the investigation that led to the charges against him. [ 2 ] The Crown has appealed the costs order, alleging that the trial judge erred in his application of the legal test that applies to an award of costs in this context. The decision to award costs is discretionary, but, as with every power granted to a judge, it must be exercised in accordance with the governing legal criteria.

In R v Pidskalny , 2012 SKCA 28 , 385 Sask R 276 [ Pidskalny ], Cameron J.A. – citing Ontario v 974649 Ontario Inc. , 2001 SCC 81 at para 87 , [2001] 3 SCR 575– explained that the case law “restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution”. [ 3 ] In this case, the trial judge found that the Charter violation was inadvertent and that the Crown had accepted responsibility. Having concluded that a stay was not justified, he ordered the Crown to make the disclosure sought by Mr.

Kamara as soon as it was practicable to do so. He then turned to the matter of costs. He relied on R v Athel , 2012 SKQB 47 , 390 Sask R 306, which adopted the “marked and unacceptable departure” standard (at para 45), finding as follows: “While I accept that the failure to disclose in a timely manner in this case is not egregious, and is more attributable to inadvertence than it is to absolute misconduct.

I am satisfied that if there is to be an award of costs, the award should be a modest one”. [ 4 ] On that basis, the trial judge awarded costs in the amount of $800. [ 5 ] It is our respectful opinion that this reasoning was flawed. The trial judge did not explain how the Crown’s conduct could qualify as a marked or unacceptable departure in light of the facts and his entirely understandable conclusion that the breach was neither advertent nor egregious.

We conclude that, while the trial judge correctly cited the test, he failed to apply it, thereby committing an error of law. [ 6 ] The trial judge found the facts necessary to enable us to decide whether costs should be awarded in favour of Mr. Kamara. We conclude that the Crown’s breach of Mr. Kamara’s right to disclosure did not rise to the standard described in Pidskalny . We must accordingly allow the appeal and set aside the order that the Crown pay $800 in costs to Mr.

Kamara. [ 7 ] Finally, we wish to emphasize that the fact that we have granted this appeal does not mean that the Crown’s conduct was acceptable. Human errors will occur. However, late disclosure and incomplete disclosure should be an infrequent occurrence and cannot be permitted to become accepted practice. Here, the Crown finally delivered the case report relating to the missing disclosure only after midday on the date set for the trial. As a result, Mr. Kamara suffered a loss of income by having to attend a trial that ultimately did not proceed because of the Crown’s dilatory disclosure.

His trial was needlessly delayed and justice system resources were wasted. While the Crown properly accepted responsibility for this breach of Mr. Kamara’s Charter rights, these important and avoidable impacts remained.