



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Bhatti,







2006 
          BCCA 16



Date: 20060113





Docket: CA031790

Between:

Regina

Appellant



And

Suraj 
    Singh Bhatti also known as Paul Bhatti

Respondent












Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Hall








G.D. 
          McKinnon, Q.C.


Counsel for the Appellant




M. 
          Peters


Appearing as
Amicus Curiae




Place 
          and Date of Hearing:


Vancouver, British Columbia




16 December 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




13 January 2006








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Hall




Concurred 
          in by:




The 
          Honourable Chief Justice Finch

The 
          Honourable Madam Justice Newbury





Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an appeal by the Crown from an order for costs made against 
    it by Allan J. on 15 March 2004.  The appeal is brought pursuant 
    to s. 676.1 of the
Criminal Code
, which provides that a 
    party who is ordered to pay costs may, with leave, appeal from such an order.  
    The appellant Crown argues that the learned trial judge ought not to have 
    made the order having regard to the circumstances of the case.

[2]

I think it useful to set out some background of the matter in order 
    to explain what had occurred in this case prior to February 2004 when the 
    mistrial occurred from which the costs order resulted.

[3]

When this case came to trial in January 2004, the factual events underlying 
    it were nearly six years old.  The respondent, Suraj Singh Bhatti ("Bhatti"), 
    and a man named Rajinder Kumar Benji ("Benji") were both charged 
    with kidnapping one Michael Singh on 6 March 1998.  Benji was also charged 
    with first degree murder of Mr. Singh and the respondent, Bhatti, faced 
    a charge of manslaughter, as having been allegedly involved to a lesser degree 
    in the homicide.

[4]

In the course of ruling on an adjournment application in 2003, Allan J. 
    set out a brief history of the events in this case as it had progressed through 
    the courts.  She said:

[16]      I propose to outline the chronology of events in this case to 
    demonstrate the excessive delay that has been occasioned by Benji through 
    his counsel.  March 6th, 1998 is the date of the alleged offences of 
    kidnapping and first degree murder for Benji, and manslaughter for Bhatti.  
    On September 17th,1998, charges were laid against both accused.  On September 21, 
    1999, Benji's preliminary inquiry commenced.  Bhatti has never had a preliminary 
    inquiry.  On December 10th, 1999, Benji was ordered to stand trial.  
    The preliminary inquiry was apparently delayed because of difficulties between 
    Benji and his lawyer, Mr. Butcher.

[17]      On December 23rd, 1999, a direct indictment was filed, 
    charging both Benji and Bhatti.  On January 12th, 2000, the first trial 
    date was fixed for both accused for June 16th to July 14th, 2000.  
    On May 5th, 2000, the trial date was adjourned because Mr. Rankin, 
    Benji's second lawyer, had been discharged and his new lawyer, Mr. Leask, 
    was unavailable.

[18]      On Mary 14th, 2000, the second trial date was fixed for 
    January 5th to February 16th, 2001.  On July 27th, 2000, Mr. Leask's 
    application to quash the direct indictment was dismissed by Mr. Justice Oppal.  
    On January 8th, 2001, the Court of Appeal allowed the appeal from Mr. 
    Justice Oppal's ruling and quashed the direct indictment.

[19]      On January 17th, 2001, Mr. Leask applied to adjourn 
    the January 5th, 2001, trial date, and Bhatti's counsel, Mr. Klein, 
    who was new to the file, consented.  On February 20th, 2001, Mr. Leask 
    applied to quash the committal of Benji for trial.  Madam Justice Bennett 
    subsequently dismissed that application.

[20]      On April 4th, 2001, the third trial date was fixed for 
    March 11th to April 12th, 2002.  On January 15th, 2002, the 
    Supreme Court of Canada reversed the Court of Appeal and upheld the direct 
    indictment against Benji.

[21]      On February 1, 2002, the March 2002 trial date was adjourned 
    because of Mr. Klein's unavailability.  Mr. Leask indicated that 
    he was also unavailable.  A fourth trial date was scheduled with
voir dires
to start on September 18th, 2002, for five weeks, with the trial to commence 
    January 6th, 2003, for four weeks.

. . .

[23]      On October 23rd, 2002, both the
voir dires
and the 
    trial were adjourned due to Mr. Leask's unavailability.  A fifth trial 
    date was scheduled for September 2nd, 2003, for six weeks.

[5]

Due to difficulties with counsel for Benji, this scheduled trial date 
    was not met and ultimately the case proceeded against Bhatti alone in January 
    2004.

[6]

After jury selection on 7 January 2004, the trial began on 19 January 
    2004.  In a discussion between Crown and defence counsel on 12 January, 
    a time between jury selection and the start of the trial, Mr. Klein advised 
    the Crown of an alibi defence to be advanced on behalf of Bhatti.  During 
    most of the duration of the proceedings, Mr. Proulx, an experienced Crown 
    counsel, was acting for the Crown.  He was at intervals assisted by Ms. Hulko, 
    a Crown counsel with a somewhat lesser level of experience.

[7]

The respondent had, over the lengthy course of proceedings, two counsel.  
    His latter counsel, who was trial counsel, was Mr. Klein.  The co-accused, 
    Benji, had been represented by five counsel at various stages.  Benji appears 
    to have manifested a propensity to disagree with and discharge his counsel. 
     Ultimately he was without counsel in January 2004 and because of his bizarre 
    behaviour at that time the judge remanded him for a forensic assessment.  
    This had the
de facto
result that Bhatti's trial proceeded without 
    Benji.  Although the Crown had always been adamant that it was the type of 
    case where both accused should be tried together and numerous severance applications 
    brought on behalf of both accused had been unsuccessful, in the result, the 
    trial in January and February 2004 involved only Bhatti.

[8]

It had been noted by Crown counsel in a discussion with the trial judge 
    on 9 September 2003, at a time when Mr. Chaggar was acting for Benji, 
    that there had been considerable disclosure problems created by the multiplicity 
    of defence counsel for Benji.  At that stage, counsel for the Crown said that 
    he was in the process of reproducing the entire Crown file for then counsel 
    Mr. Chaggar, even though he had already disclosed a large volume of material 
    to previous counsel.  Mr. Klein, who represented the respondent Bhatti 
    for about two years, noted at the time of the costs hearing on 9 February 
    2004, that with the exception of the non-disclosure of certain taxicab records 
    that resulted in a mistrial and the costs order, Crown counsel had, in his 
    view, fully complied with all disclosure obligations over the course of proceedings.

[9]

In this case, the Crown alleged that Benji and Bhatti, the respondent, 
    had kidnapped and killed Singh, who was said to be indebted by reason of a 
    criminal enterprise.  Singh had not paid the alleged debt.  The Crown had 
    evidence of conversations with a third party that appeared to place Benji 
    and Bhatti together in the company of Singh around 4:00 p.m. on the afternoon 
    of March 6, 1998, the date of the alleged homicide.  It was, of course, 
    vital to his defence for Bhatti to establish an alibi which placed him somewhere 
    else than with Benji and Singh around 4:00 p.m. on the date of the homicide.

[10]

After being advised of the possible alibi defence on 12 January 
    2004, counsel for the Crown took steps to have the matter investigated.  An 
    investigator discovered certain taxicab records from 1998 that had a tendency 
    to contradict the proposition that Bhatti had been with a cabdriver relative, 
    one Mr. Cheema, at around 4:00 p.m. on the date in question.  These 
    records were not disclosed to the defence in a timely way and it was only 
    after the respondent gave evidence in chief that his counsel became aware 
    of the existence of these records.  There was thus a failure of disclosure 
    on the part of the Crown.  It emerged during the costs proceeding on 9 February 
    2004, after a mistrial had been declared, that apparently Mr. Proulx 
    thought his junior, Ms. Hulko, had made disclosure to the defence of 
    these records.  Given the rather tangled history of these proceedings and 
    the many changes of counsel, such a mix up might be more explicable in this 
    case than would be so in other cases.

[11]

In any event, the trial judge did not take the view that the failure 
    of disclosure constituted wilful action on the part of the Crown.  She did 
    observe that she viewed it as a fairly egregious example of negligent conduct 
    by Crown counsel in failing to ensure that proper disclosure was made to defence 
    counsel.  The judge adjourned the case from 6 February, when the records 
    came to light, until 9 February.  On that date, defence counsel for Bhatti 
    successfully applied for a mistrial.  The trial judge at this time suggested 
    to defence counsel he might consider applying for costs and she directed that 
    a hearing on that matter should proceed that afternoon at 3:00 p.m.:







THE COURT:


I am going to declare a mistrial.







MR. PROULX:


Very well, My Lady.







THE COURT:


It's a very, very unfortunate result, a very unfortunate 
          result.  And what I'm going to do is I'm, first of all, going to ask 
          your friend if he's aware of the cases on where costs can be ordered 
          in such a case?







MR. KLEIN:


I'm not, My Lady, no.







THE COURT:


Well, I believe there is and you may want to look at 
          that.







MR. KLEIN:


I will look at those, yes.



[12]

Mr. Klein concluded his submission at the costs hearing by saying, 
    "it simply boils down to that a mistake was made and the ramifications 
    are significant, and is there a remedy for that?"

[13]

Counsel for the Crown did not give evidence at the costs hearing, but 
    he stated that his action was inadvertent and not wilful.  The judge appears 
    to have accepted that statement of Crown counsel.  Just prior to speaking 
    to the jury about the mistrial order, she observed to Crown counsel, I dont 
    think it was a calculated scheme, so I will be careful to indicate that it 
    wasnt a calculated scheme on your part.

[14]

In her reasons for judgment delivered about five weeks later, the judge 
    stated that the Crown had been negligent and that the failure to disclose 
    the existence of the records was a serious breach of the Crown's disclosure 
    obligations.  She said this in the course of her reasons:

[36]      By January 26, when the Crown received the trip sheets 
    and computer print outs, it was well aware that the accused was relying on 
    an alibi defence.  It had instigated a further police investigation, as a 
    result of which a police officer had been dispatched to Yellow Cab to probe 
    Mr. Bhatti's alibi.  The information received from Yellow Cab went to 
    the heart of the accused's defence.  The Crown's preoccupation with the pressures 
    of a difficult and challenging prosecution does not justify its negligence.  
    Disclosure was crucial in light of the critical importance of that information, 
    and the late date at which it was received.  I would characterize the Crown's 
    actions as a "curious and conscious indifference to the Crown's duty 
    to be fair".  Disclosure should have been automatic and mistakes made 
    within the Crown office are not an adequate excuse.

. . .

[43]      The Crown failed to make full disclosure to the defence.  That 
    non-disclosure struck at the heart of the accused's defence and impaired his 
    right to make full answer and defence.  Although the non-disclosure did not 
    arise through wilful misconduct, the Crown's conduct constitutes an unacceptable 
    departure from the disclosure procedures reasonably expected of the Crown.  
    The Crown's explanation for the non-disclosure is unsatisfactory.  The accused 
    suffered a compensable loss as a result of the mistrial.  The appropriate 
    remedy is an award of the costs thrown away to compensate him.

Although the trial judge was able to determine in her 
    reasons delivered 15 March 2004, that costs ought to be awarded against 
    the Crown, she was unable to decide on quantum at that stage and left it to 
    counsel to arrange a convenient date to make further submissions with regard 
    to that issue.  Counsel for the appellant submitted in argument that perhaps 
    the judge was overly concerned with possible compensation of the respondent 
    for monies expended for no purpose as a result of the mistrial.  There is 
    some support for that submission in the concluding sentences of para. 43,
supra
.

[15]

On 28 October 2004, counsel for the Crown, who had not been trial 
    counsel, and Mr. Klein appeared before the trial judge.  The Crown put 
    the matter before the judge with the agreement of Mr. Klein to ask for 
    "some direction or clarification from your Ladyship with respect to the 
    judgment on costs dated March 15, 2004".  Crown counsel asked the 
    judge to clarify whether the order was made under s. 24(1) of the
Charter
or under the court's inherent jurisdiction to control its own process.  Counsel 
    also raised the issue as to whether the order for costs included costs of 
    the trial, as well as the mistrial application.  It was the Crown's position 
    that before making submissions on the quantum of costs, some guidance was 
    sought so that counsel would "know how to proceed".

[16]

The judge suggested that it would be up to counsel to decide what the 
    quantum of costs should be after doing further research on the subject.  Ultimately, 
    the quantum issue faded into insignificance because the Crown stayed proceedings 
    against Bhatti and there was thereafter no real issue as to trial costs thrown 
    away.

[17]

After some further discussion with counsel about the quantum and the 
    issue of the basis for the order, either pursuant to inherent jurisdiction 
    or pursuant to s. 24(1) of the
Charter
, the trial judge 
    indicated that she considered she had been operating under her inherent jurisdiction.







THE COURT:


Well, I mean, my preliminary thought would certainly 
          be that I was operating under my inherent jurisdiction, unless I have 
          said something in my judgment, which I haven't recently reread, and 
          -- or unless I relied on cases that were specifically -- but I would 
          have thought that you'd have to make an application really invoking 
          the
Charter
for me to make an order.







MR. KLEIN:


Yes.







THE COURT:


So I would, I think, feel comfortable in 
          saying that the order was made under my inherent jurisdiction.



[18]

Counsel were again before the judge on 1 April 2005.  By that 
    time, the Crown had entered a stay of proceedings against the respondent, 
    Bhatti, and the judge observed that it was probable that there were no trial 
    costs thrown away because the respondent had a trial and, in the end, "no 
    matter how circuitously, he got a result, and a favourable result, I might 
    add".  Counsel and the judge had a discussion about the standard to be 
    applied when a court was considering an award of costs against the Crown.  
    In the course of his submissions, Mr. Klein said this:







MR. KLEIN:


I don't think Your Ladyship found anything wilful 
          on the part of Mr. -- in fact, my recollection is to the contrary.  
          It was just inadvertent on his part and that we all accept that.  In 
          this particular case there's a distinction because it was marked for 
          disclosure and there was a conscious decision not to disclose it



because they didn't think it was relevant or whatever 
          their mindset was.  So it's distinguishable.

So when I'm going through these case authorities, 
          I -- after speaking with my friend, I concur that the inherent jurisdiction 
          is a different standard than a
Charter
jurisdiction, and 
          if we're operating under the inherent jurisdiction, I concur, as well, 
          that it's costs thrown away, and it also has to be wilful misconduct, 
          which hasn't been found in this particular case.  If it's under a
Charter
jurisdiction, then it appears to me that the costs are --







THE COURT:


Well, they have a punitive aspect.







MR. KLEIN:


They have a punitive element to it.







THE COURT:


Yes.







MR. KLEIN:


So, and then it wouldn't matter.  Where 
          this case falls, I -- to be absolutely honest, I can't tell you where 
          this case falls,



Ultimately, the judge decided that the mistrial application 
    being half a day and the costs application being half a day, the appropriate 
    sum to award for a day was $1,250, plus tax, which came out to something just 
    over $1,400.  Since it was known at that time that an appeal had been taken, 
    counsel for the respondent noted that he was going to take no steps to collect 
    pending the resolution of the appeal proceeding.

[19]

There appears to be a clear distinction in the cases between situations 
    where the court is ordering costs pursuant to its inherent jurisdiction to 
    control its own officers and its own process, and cases where a remedy is 
    being granted by a court under s. 24(1) of the
Charter
.  
    The cases indicate that there are a range of remedies available to an accused 
    person under s. 24(1) of the
Charter
, including adjournment, 
    an award of costs and, the most drastic remedy, the ordering of a judicial 
    stay of proceedings.

[20]

Consequent upon a mistrial, courts have on occasion ordered costs against 
    the Crown as a compensatory remedy under a costs thrown away analysis.  That 
    was the rationale for an award of costs in the case of
R. v. McKillip
, 
    [1996] O.J. No. 2757 (QL); 8 O.T.C. 378, (Ct. J. (Gen. Div.)).  In that 
    case, there had been two trial proceedings.  Ultimately, after the second 
    trial proceeding, the accused was acquitted. The nature of the difficulty 
    in that case is set out in the following passage:

[2]        
    The mistrial resulted from the crown attorney's failure to disclose 26 pages 
    of material, the results of an investigation by a police officer into matters 
    raised by the defence approximately one year before the trial.  At 
    a pre-trial hearing defence counsel revealed to the crown attorney three possible 
    elements of the accused's defence.  He asked for disclosure of any 
    material relating to these points. The crown attorney asked the officer to 
    look into the matters. He did so and reported back about three months later, 
    noting in his transmittal letter that the material was compiled for "... 
    disclosure to defence council [
sic
] Mr. Barrie ... '  In 
    a note to the crown attorney, his secretary asked whether the material should 
    be disclosed.  He replied "Not Necc. just file w/brief .."  The 
    material came to light at the conclusion of the cross-examination of the complainant, 
    about a week into the trial.  The accused's counsel successfully 
    argued the undisclosed material was essential to the conduct of the defence.  He 
    convinced me he would have structured his cross-examination differently had 
    the undisclosed material been available to him.  In my reasons for 
    ordering a new trial I said:







I 
          reserve my decision on the issue of costs until the conclusion of the 
          new trial.  I will examine the extent to which the defence 
          conducts itself differently during the second trial, and I will hear 
          argument on the question of costs at that time and not now.



[21]

O'Connor J. ultimately made an order for costs in the amount of 
    $7,500 to compensate the accused for legal expenses incurred up to the time 
    of the mistrial order and to show disapproval of the conduct which resulted 
    in prejudice to the accused.  O'Connor J. said this in the course of 
    his reasons:

[10]      Here, where the investigation into the areas covered in the 
    26 pages was instigated by the Defence request and the report was prepared 
    for "disclosure to defence council Mr. Barrie" it is difficult 
    to characterize the failure to pass on the report to the Defence as anything 
    but "... a marked and unacceptable departure from the usual and reasonable 
    standards of prosecution", as those standards respecting disclosure are 
    defined in the cases noted.
Further the failure was not inadvertent.  The 
    crown attorney read the report and made a conscious decision to not disclose 
    it but to simply file it
.

[Emphasis added.]

That case manifests a species of intentional action by 
    a Crown prosecutor that is very different from what occurred in the case at 
    bar.

[22]

The Ontario Court of Appeal noted in the case of
R. v. Pawlowski
(1993), 12 O.R. (3d) 709; [1993] O.J. No. 554 (QL), that superior courts 
    possess an inherent jurisdiction to award costs against the Crown in a criminal 
    case.  It is a power that was exercised only rarely and before the advent 
    of s. 24(1) of the
Charter
was utilized only where there 
    had been serious misconduct on the part of the Crown.

[23]

Such jurisdiction had also been referred to in a pre-
Charter
case,
Attorney-General of Quebec v. Cronier
(1981), 63 C.C.C. 
    (2d) 437; 23 C.R. (3d) 97 (Que. C.A.), a decision of Madam Justice L'Heureux-Dubé 
    when she was on the Quebec Court of Appeal.  She said at p. 11:

A superior Court has the power to maintain its authority 
    and to control its procedure so as to put justice in order and efficiently.  
    That this implies sometimes ordering one of the parties and even lawyers to 
    pay the costs of a proceeding in cases of the abuse or of the frivolity of 
    proceedings, of misconduct or dishonesty or of taken for some other ulterior 
    motive, is a recognized principle.  But the conditions for the exercise of 
    this inherent power must exist.

According to the authorities, the criteria which applies 
    in this matter can be equated to those which apply in contempt of Court situations, 
    namely, this characteristic of gravity equivalent to "misconduct" 
    and "dishonesty".

[24]

In the case of
R. v. Ryan (C.B.)
(2001), 198 N.S.R. (2d) 
    106; 2001 NSCA 149, the Nova Scotia Court of Appeal set aside an award of 
    costs made by a trial judge, observing that there was no basis to make such 
    award in the case, either under the inherent jurisdiction of the court or 
    under the
Charter
.  In the course of giving judgment, Oland J.A., 
    observed:

[11]       The inherent jurisdiction of the superior courts to award 
    costs against the Crown in a criminal case is to be exercised only where there 
    was serious misconduct on the part of the prosecution:  see
R. 
    v. Pawlowski (M.)
, [1993] O.J. No. 554, 61 O.A.C. 276 (C.A.) (application 
    for leave to appeal to the Supreme Court of Canada dismissed).  Generally 
    a criminal defendant is not entitled to costs unless there is something "remarkable" 
    or "unique" about the case or something "oppressive" or 
    "improper" about the conduct of the prosecution:
R. 
    v. Pottier (D.W.)
, [1999] N.S.J. No. 95, [1999] N.S.R. (2d) Uned. 
    29 (C.A.) at s. 7

[25]

In the case at bar, the trial judge referred to the conduct of Crown 
    counsel as "a curious and conscious indifference to the Crown's duty 
    to be fair".  That comment appears to originate from a judgment of Richard J. 
    of the Northwest Territories Supreme Court in the case of
R. v. Dostaler
(1994), 91 C.C.C. (3d) 444; [1994] N.W.T.R. 246 (S.C.).  In that case, the 
    accused had been charged with possession of narcotics for the purpose of trafficking.  
    Defence counsel had given notice to the Crown that at trial he wished to contest 
    the validity of a search warrant issued by the justice of the peace and he 
    specifically requested full disclosure of any notes made by the investigating 
    officer.  There existed on the file notes made by the investigating officer 
    on the evening he obtained the search warrant.  These notes indicated that 
    he had prepared a 3‑page information to obtain a warrant, but one of 
    the pages of the document was missing when it was presented to the justice 
    of the peace.  Copies of these notes were not provided to defence counsel 
    prior to trial, nor was their existence disclosed until they came to light 
    upon the third day of the trial.  This discovery occurred after a
voir 
    dire
had been held to determine the validity of the search warrant and 
    the search warrant had been found, on the
voir dire
, to have been validly 
    issued.  When their existence became known, the court took a serious view 
    of the matter and declared a mistrial.  Richard J. said at 446:

The Crown's conduct in failing to disclose this important 
    information until after the ruling on the
voir dire
was more than inadvertence 
    
it was a curious and conscious indifference to the Crown's duty to be 
    fair
.  It was a clear departure from the normal standards of prosecution, 
    particularly in view of the specific request for disclosure and the subject-matter 
    of the
voir dire
.

[Emphasis added.]

The language of a clear departure from the normal standards 
    of prosecution appears to have been picked up by OConnor J. two years 
    later in the decision of
McKillip
, supra
, a case that 
    involved more than mere inadvertence.

[26]

Richard J. concluded that this was a case in which it was appropriate 
    to award costs.  He said:

This is, in my respectful view, one of those clear cases 
    where the court should exercise its discretion to award costs against the 
    Crown.  The following factors, in particular, require it:

(a) 
           there was a serious interference with the accused's right to fundamental 
    justice;

(b) 
           the Crown and police conduct amounted to more than mere inadvertence;

(c) 
           the court ought to demonstrate its disapproval of this Crown and police 
    conduct;

(d) 
           the accused has a clear compensatory need. I therefore grant the accused 
    a further remedy under s. 24(1) of the
Charter
by awarding costs 
    against the Crown in the amount of the accused's actual transportation costs 
    to and from the place of trial, and thrown away counsel fees calculated on 
    a solicitor-and- client basis.

If 
    counsel are unable to agree on quantum, they can speak to me in chambers by 
    appointment.  Order accordingly.

The case at bar presents, in my opinion, a very different 
    factual situation from that disclosed in cases such as
Dostaler
and
McKillip
.

[27]

In the case of
R. v. Robinson
(1999), 142 C.C.C. (3d) 
    303; 1999 ABCA 367, McFadyen J.A. stated that costs should not be routinely 
    awarded against the Crown.  She noted that something more than a
bona fide
disagreement as to the applicable law or a technical, unintended or innocent 
    breach, whether clearly established or not, is required.  In that case, the 
    conduct of trial counsel for the Crown had been characterized by the judge 
    who granted costs as "intransigent" and as "thwarting" 
    disclosure.  The award of costs was upheld by the Court of Appeal because 
    it was not demonstrated that the trial judge had committed any palpable and 
    overriding error in making an award of costs in the circumstances of that 
    case.

[28]

In the case of
R. v. 974649 Ontario Inc.
, [2001] 
    3 S.C.R. 575; 2001 SCC 81, a case that primarily dealt with the power of a 
    justice proceeding under the
Provincial Offences Act
of Ontario 
    to award costs, the Chief Justice, giving judgment for the Court, noted that 
    the Crown is not to be held to a standard of perfection and that costs awards 
    should not flow from every failure to disclose in a timely fashion.  She said, 
    at p. 618, "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."

[29]

In
R. v. Sweeney
(2003), 179 C.C.C. (3d) 225; 2003 MBCA 
    127, a case in which a judge had ordered costs as a result of a finding of 
    non-disclosure on the part of the Crown, the Manitoba Court of Appeal allowed 
    an appeal from the award of costs.  Philp J.A. said this:

[62]      Assuming that the information Ms. Cameron had received 
    in her telephone conversations with the Jakemans met the
Stinchcombe
threshold of relevance with respect to the Sweeney prosecution, her failure 
    to pass that information on to Mr. Morrison was, in my view, a mistake, 
    an unintended, innocent and inadvertent one, and perhaps even a careless one. 
     It did not, however, amount to a marked and unacceptable departure from the 
    reasonable standards expected of the prosecution.

[63]      The finding of the trial judge is one of fact, but it is so 
    clearly wrong as to justify appellate interference.

[30]

In my opinion, the procedure adopted in the present case concerning 
    the issue of whether or not costs should be awarded against the Crown was 
    unfortunate.  Counsel for the Crown and defence were required on the day of 
    the declaration of mistrial, with virtually no interval between the declaration 
    of mistrial and the costs hearing, to advance submissions as to whether an 
    award of costs was warranted in the circumstances of this case.  Mr. Klein 
    on a later occasion noted that because of the celerity of the proceedings, 
    he had never directed his mind to the precise basis that existed in law for 
    any costs order he might seek.  Given the severe time constraints, neither 
    counsel had much opportunity to marshal and comment upon relevant authority.  
    It seems to me that it would usually, as a minimum, be appropriate for a trial 
    court to afford an interval of some days before counsel and the court should 
    be required to address such an issue.  That would afford a decent interval 
    for the facts to be properly appraised and for the relevant authorities to 
    be collected.  I venture also to suggest that it would be usually a wise practice 
    to have counsel other than Crown counsel who conducted the trial speak to 
    such a matter since it is the conduct of trial counsel that is being examined.  
    In this Court, we would, I think, be most reluctant to have counsel conduct 
    an appeal if his or her conduct at trial is in issue, (for instance, if an 
    issue was taken concerning the propriety of a jury address), and I do not 
    see why any different practice should exist in this type of situation in a 
    trial court.

[31]

The reasoning of the trial judge here appears to reflect a basic inconsistency.  
    From observations made before and during the hearing, the judge appeared to 
    treat the failure of disclosure of material by Crown counsel as an inadvertent 
    one.  I also note that in her reasons at para. 30 she refers to the conduct 
    as "an error" and states at para. 43 that "the non-disclosure 
    did not arise through wilful misconduct".  She also noted in reasons 
    delivered on the mistrial application that there was nothing deliberate in 
    the failure of disclosure.  At para. 36, she observed that "mistakes 
    made within the Crown office are not an adequate excuse".  However, just 
    prior to the utilization of this phraseology she characterizes the actions 
    of the Crown as "a curious and conscious indifference to the Crown's 
    duty to be fair", language adopted from the judgment of Richard J. 
    in
Dostaler
,
supra
.  As I think has been demonstrated 
    from the reference above to the situation in
Dostaler
, that 
    case was an example of conscious non-disclosure by the prosecution authorities.  
    I find it impossible to reconcile these various references, some of which 
    appear to be references to inadvertent conduct and others to wilful conduct 
    on the part of Crown counsel.  The judge was understandably concerned with 
    the result of a mistrial in a case that had been grievously delayed, but I 
    consider she may have been overly concerned with the financial burden accruing 
    to the accused as a result of the mistrial.  Ultimately, as events transpired, 
    because the Crown stayed the prosecution against the respondent, there was 
    no real financial loss to the respondent.

[32]

In my view, it was incorrect for the judge to characterize the Crown's 
    non-disclosure as "unacceptable negligence" and as a "curious 
    and conscious indifference to the Crown's duty to be fair."  There is 
    nothing in the record to support such findings.

[33]

There was similarly no reason to characterize the Crown's explanation 
    for the non-disclosure as "unsatisfactory."  Mr. Proulx accepted 
    responsibility for the mistake.  He attempted to show why an isolated and 
    accidental non-disclosure in proceedings that went on for almost six years 
    did not justify an award of costs against the Crown.  By awarding costs against 
    the Crown for a single and innocent act of non-disclosure, the trial judge 
    effectively held Crown counsel to a standard of perfection.

[34]

Additionally, there is a problem of analysis present in this case in 
    that the judge seemed to be of the view that the order was made pursuant to 
    her inherent jurisdiction, but the criterion of serious misconduct on the 
    part of counsel that would afford the foundation for any order pursuant to 
    this class of jurisdiction was clearly absent.  The authorities, including
Pawlowski
, supra
, afford no support for an order being 
    made under that head of jurisdiction on the facts of this case.

[35]

Whether or not, in the circumstances of this case, it could have been 
    thought appropriate for any award of costs to be made under s. 24(1) 
    of the
Charter
is a nice question.  I rather doubt that I would 
    have considered it an appropriate case for an award having regard to the comments 
    of the Chief Justice in
R. v. 974649 Ontario Inc.
,
supra
, 
    and what was said by McFadyen J.A. in
Robinson
,
supra
.  
    The factual circumstances where such awards were made in several of the cases 
    cited by counsel for the appellant and counsel appearing as
amicus curiae
appear to disclose more blameworthy circumstances than the present case.  
    While there appears to have been a degree of oblivion exhibited here on the 
    part of counsel for the Crown, it is very difficult to discern any conscious 
    obstruction.  I need however reach no final conclusion on this issue since 
    it does not appear that the judge was here expressly asked for a
Charter
remedy, nor, apparently, did she consider she was being asked to give such 
    a remedy.

[36]

Counsel appearing as
amicus curiae
has suggested that the two 
    heads of jurisdiction allowing a court to award costs against the Crown, inherent 
    jurisdiction and as a form of
Charter
relief, could perhaps 
    be usefully merged, but I am reluctant to adopt such a suggestion.  It seems 
    to me that the two tests or standards are well-known and workable in practice 
    and I consider the two possible heads that exist to found jurisdiction for 
    a costs order should be kept distinct.

[37]

The above-noted errors in approach that occurred in this case, coupled 
    with the unsatisfactory nature of the original hearing in February 2004, in 
    my opinion lead to the result that this appeal ought to be allowed and the 
    order for costs should be set aside.  I would so order.



The 
    Honourable Mr. Justice Hall



I 
    Agree:



The 
    Honourable Chief Justice Finch



I 
    Agree:



The 
    Honourable Madam Justice Newbury


