



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2016 ONCA 108

DATE: 20160208

DOCKET: C58840

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jaswinder Singh, Asogian Gunalingam and Jora
    Jassal

Respondents

John McInnes, for the appellant

Jesse Razaqpur, for the respondent Jaswinder Singh

Robert Lepore, for the respondent Asogian Gunalingam

No one appearing for the respondent Jora Jassal

Andrea Danon and J. Stanley Jenkins, for the intervener
    Legal Aid Ontario

Louis P. Strezos, for the intervener Criminal Lawyers
    Association

Heard: November 4, 2015

On appeal from the orders of Justice Antonio Skarica of
    the Superior Court of Justice, dated May 6, 2014, with reasons reported at 2014
    ONSC 2848, and at 2014 ONSC 897.

Pardu J.A.:

[1]

The respondents were charged with kidnapping, extortion, and assault. About
    a month into their trial, the Crown realized that it had not disclosed
    important inculpatory evidence. The trial judge declared a mistrial and ordered
    the Crown to pay costs to the respondents totaling $580,086.61. The Crown
    appeals from those costs orders.

A.

Background

[2]

The police rushed to a Mississauga residence in response to a 911 call,
    where they found a bound woman in the basement. The respondents, Jaswinder
    Singh, Asogian Gunalingam, and Jora Jassal, were arrested and charged with
    kidnapping, extortion, and assault.

[3]

The respondents trial commenced on January 6, 2014. Nearly a month later,
    on January 31, the Crown disclosed to the defence important inculpatory
    evidence for the first time. The evidence consisted of records for a number of
    cell phones connected with the respondents.

[4]

In response to the late disclosure, the respondents brought an
    application for a stay of proceedings or, in the alternative, a mistrial with a
    costs order against the Crown. The trial judge concluded that a mistrial was
    warranted because of failings on the part of the police and the Crown. The
    trial judge also concluded that he should order the Crown to pay costs to the
    respondents. After a subsequent hearing, the trial judge determined the quantum
    of the costs award and ordered that the Crown pay a total of $580,086.61 to the
    respondents, quantified on the basis of the civil cost regime under the
Rules
    of Civil Procedure
.

(1)

Cell phone records and disclosure

[5]

The cell phone records at issue related to four different phones: a
    phone that had been seized at the scene of the kidnapping, a phone found in
    pants connected to one of the respondents, the phone that had been used to make
    the 911 call, and a phone from British Columbia linked to one of the
    respondents.

[6]

In a letter dated March 19, 2012, counsel for Singh wrote to the Crown
    and asked for confirmation of the number for the cell phone from which the 911
    call had been made. In a letter dated March 19, 2012, he also requested any
    information that may be of interest to the defence, but which [the Crown has]
    chosen not to disclose for any reason.

[7]

In a letter dated April 22, 2012, counsel for Singh stated:

In the event that you are in possession of any information that
    may be of interest to the defence, but which you have chosen not to disclose
    for any reason, please advise us of the existence [of] any such information and
    your reasons for refusing to disclose it, so that any appropriate application
    may be made to the trial judge for a determination as to the appropriateness of
    the decision to not disclose the information.

[8]

On April 25, 2012, the Crown responded with a seven-page letter providing
    various responses to the disclosure requests, and in particular indicating the
    following:

12.
Withheld disclosure.
I am withholding no
    other disclosure at this time. I understand that further disclosure, as a
    result of analysis of cell phone records, will be provided in the future, and
    my present intention is to provide that to you.



14.
Phone number used to call 911 to report something
    bad.
As noted on the incident history, the number used to place this
    call is 647-871-3175. This number is apparently registered to Shalini
    Mahalingham. According to Ms. Mahalingams statement (already disclosed) while
    this number is registered to Ms. Mahalingham, it is used by her boyfriend,
    Asogian Gunalingam.

[9]

Despite the Crowns promise to provide the results of the cell phone
    analysis, the records were not provided.

[10]

Police
    had sought production orders for the cell phones in December 2011, a month
    after the charges were laid, and obtained the records by the end of March 2012.
    A preliminary hearing took place in July and November 2012 and pretrial motions
    were heard in November and December 2013. A jury was selected in November 2013,
    and the trial began on January 6, 2014. By that time, the Crown originally
    assigned to the matter was unavailable due to a conflict with another trial and
    a new Crown was assigned to conduct the respondents trial. None of the cell
    phone records had been disclosed.

[11]

There
    is no evidence that counsel for any of the respondents raised the issue of the cell
    phone records promised by the Crown when they did not materialize. About a
    month into the trial, the Crown realized the cell phone records had not been
    disclosed and that a cell phone purportedly belonging to the respondent
    Gunalingam had just recently been fired up for examination.

(2)

Mistrial application

[12]

As
    noted, after the late disclosure of the cell phone records, the respondents
    applied for a stay of proceedings or, in the alternative, a mistrial.

[13]

The
    trial judge found that the respondents right to a fair trial had been
    prejudiced. The trial judge found that the police had lost key evidence (a
    wallet and identification said to belong to the respondent Gunalingam found in his
    pants along with a blank cheque and drivers licence belonging to the victim)
    and had failed to discover relevant evidence, due to unacceptable negligence.
    The trial judge also found that the Crowns failure to disclose the cell phone
    records in a timely fashion resulted due to the negligence of the Crown. All
    of this evidence, the trial judge held, was highly relevant to the respondents
    defence theory that the police had planted evidence. Therefore, trial fairness
    required that the respondents be permitted to reassess their respective
    strategies in light of the newly disclosed cell phone evidence.

[14]

The
    trial judge concluded that this was not one of those rare and clearest of
    cases where a stay is appropriate and, importantly, noted that there is no
    evidence of any deliberate misconduct on the part of the Crown or the police. He
    decided that prejudice to the accused can be remedied and the accuseds right
    to full answer and defence can be protected by fashioning a remedy under
    section 24 (1) of the
Charter
that would restore all of the accused to
    the same position they were in before the pre-trial motions commenced.
    Consequently, he declared a mistrial and made a number of related orders,
    including ordering that the Crown pay costs to the respondents.

(3)

Trial judges decision on entitlement to costs

[15]

With
    reference to this courts decisions in
R. v. Ciarniello
(2006), 81
    O.R. (3d) 561, and
R. v. Tiffin
, 2008 ONCA 306, 90 O.R. (3d) 575, the
    trial judge concluded that a
costs award can be
    made against the Crown where there is a marked and unacceptable departure from
    the reasonable standards expected of the prosecution or, in rare situations,
    where there is an extreme hardship inflicted on the accused.


[16]

On
    the first branch, the trial judge noted that there were a number of violations
    of s. 7 of the
Charter
in this case which either did not amount to a marked
    and unacceptable departure or that were not attributable to the Crown.
    However, the trial judge stated that the late disclosure of the cell phone
    records was on an entirely different footing. Earlier in his reasons, the trial
    judge found that the Crown had been negligent in failing to disclose the cell
    phone records, but that there was no evidence of deliberate misconduct. The
    trial judge held that the Crown was obliged to explain the reasons for the material
    non-disclosure and had failed to do so. After reviewing in detail the history
    leading up to the eventual disclosure, the trial judge concluded that the
    totality of the circumstances that led to the very late disclosure of the cell
    phones show[ed] a marked and unacceptable departure from the reasonable
    standards expected of the prosecution.

[17]

On
    the second branch, the trial judge noted that the conduct of both the Crown and
    the police had resulted in numerous breaches of s. 7 of the
Charter
and
    the three accused, through no fault of their own, incurring hundreds of
    thousands of dollars in legal costs. He concluded that it would work an extreme
    hardship on the accused to pay these extensive legal fees.

[18]

On
    these dual bases of a marked and unacceptable departure from the reasonable
    standards expected of the prosecution and extreme hardship to the accused, the
    trial judge concluded that a costs award in favour of the respondents was an appropriate
    and just remedy for non-disclosure of the phone records, pursuant to s. 24(1)
    of the
Charter
.

(4)

Trial judges decision on the amount of costs

[19]

After
    a subsequent hearing, the trial judge determined the quantum of costs that the
    Crown would be required to pay. The trial judge held that all pre-trial motions
    would have to be re-heard because of the impact of the cell phone records on
    the defence approach. Therefore, he decided that an award of costs which fully
    indemnified the respondents for all costs thrown away on the motions and the
    trial was justified.

[20]

The
    trial judge observed that neither the
Criminal Code
nor the
Criminal
    Proceedings Rules,
SI/2012-7, provide guidance as to the quantum of a
    costs award in criminal matters. He referred to Rule 1.04(2) of the
Criminal
    Proceedings Rules
which states that: Where matters are not provided for
    in these rules, the practice shall be determined by analogy to them. He
    concluded that this allowed him to import into the criminal trial context the civil
    costs regime. He applied rule 57.01 of the
Rules of Civil Procedure
.

[21]

Before
    the trial judge, the Crown argued that the costs payable to Gunalingam should
    be reduced because he was legally-aided, and that Singh should be required to
    disclose if he was legally-aided as well. The trial judge rejected both
    propositions.

[22]

With
    reference to s. 46 of the
Ontario Legal Aid Services Act
,
1998
,
    S.O. 1998, c.26 (
LASA
) and s. 131(2) of the
Courts of Justice
    Act
, R.S.O. 1990, c. C-43, the trial judge concluded that a legally-aided
    defendant should be able to claim costs at the usual rate of their counsel and
    not those set by Legal Aid. In reaching that conclusion, the trial judge

adopted
    the jurisprudence relating to an award of costs to a party funded by Legal Aid
    in the civil context. The trial judge held that the costs awarded should be
    based on the market rate charged by counsel, instead of the lower rates paid to
    lawyers working on a legal aid certificate:
Ramcharitar v. Ramcharitar
(2002), 62 O.R. (3d) 107 (S.C.);
El Feky
    v. Tohamy,

2010 ONCA 778
; and
Abdiwahab v. Mohamuud
, 2013 ONSC 6194
.

[23]

The
    trial judge also concluded that the fact that an individual is legally-aided is
    privileged. Therefore, Singh did not have to disclose whether he was legally-aided
    or not.

[24]

The
    trial judge, again with reference to the civil costs regime, concluded that an
    award on the substantial indemnity scale was warranted in this case. He stated
    that such an award would: (a) compensate the respondents for costs thrown away
    at the pre-trial motions and trial proceedings; (b) fulfil the objective of
    crafting a remedy that would restore all of the accused to the same position
    they were in before the pre-trial motions; and (c) enable the court to control
    its process regarding flagrant and unjustified non-disclosure by the Crown.

[25]

Applying
    these principles, the trial judge:

·

Awarded costs to Jassal, based on an hourly rate of $700.00, in
    the sum of $205,066.75;

·

Awarded costs to Gunalingam, based on an hourly rate of $700.00,
    in the sum of $245,526.40;

·

Awarded costs to Singh, based on an hourly rate of $400.00, in
    the sum of $129,493.78.

[26]

Ultimately,
    the matter did proceed to trial before a jury and another judge. The cell phone
    records did not have significant impact on the case against Singh, and he was
    acquitted. The respondents Jassal and Gunalingam were convicted and sentenced
    to penitentiary terms of 9 and 12 years, respectively. Some of the evidence
    found on the Blackberry was powerfully incriminatory.

B.

Issues on appeal

[27]

This
    appeal presents two questions. First, was the trial judge correct in concluding
    that a costs award against the Crown was warranted in this case? Second, if a
    costs award was warranted, was the trial judge correct in his approach to
    quantifying those costs?

[28]

For
    the reasons that follow, the trial judge erred in concluding that a costs award
    against the Crown was warranted in this case. For that reason, it is not
    strictly necessary to address issues regarding the quantification of costs or
    legal aid. Nonetheless, I will make comments on those matters.

C.

when should a court award costs against the crown for non-disclosure
    pursuant to s. 24(1) of the
charter
?

[29]

Before
    this court, the parties disagree on the scope of a courts authority to award
    costs against the Crown in a criminal proceeding. The Crown argues that a
    courts authority to order costs remains indelibly linked to its conventional,
    narrowly-drawn antecedents and is restricted to cases of serious Crown
    misconduct. The respondent takes an entirely contrary position and argues that
    a court may award costs both in cases of Crown misconduct and for any
Charter
infringement.

[30]

I
    would reject both positions. A review of the jurisprudence reveals that the
    courts have balanced competing objectives when circumscribing the availability
    of costs pursuant to s. 24(1).

[31]

As
    recognized by McLachlin C.J.C. in
Vancouver (City) v. Ward
, 2010 SCC
    27, [2010] 2 S.C.R. 28, at paras. 16-19, s. 24(1) provides a broad discretion
    to determine what remedy is appropriate and just in the circumstances of a
    particular case but it does not provide an unfettered discretion. What is
    appropriate and just will depend on the facts and circumstances of the
    particular case and prior case law provides guidance when a court is
    determining an appropriate and just remedy:
Ward
, at para. 19.

[32]

It
    is now well established that a trial judge may award costs against the Crown
    for a breach of its disclosure obligations. As indicated in
R. v.
974649
    Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, at paras 80, 81, and 87:

Costs awards to discipline untimely disclosure are integrally
    connected to the function of the provincial offences court as a quasi-criminal
    trial court. Costs awards have a long history as a traditional criminal law
    remedy. Although sparingly used prior to the advent of the Charter, superior
    courts have always possessed the inherent jurisdiction to award costs against
    the Crown. In recent years, costs awards have attained more prominence as an
    effective remedy in criminal cases; in particular, they have assumed a vital
    role in enforcing the standards of disclosure established by this Court in
R.
    v. Stinchcombe
, [1991] 3 S.C.R. 326.

Such awards, while not without a compensatory element, are
    integrally connected to the courts control of its trial process, and intended
    as a means of disciplining and discouraging flagrant and unjustified incidents
    of non-disclosure. Deprived of this remedy, a provincial offences court may be
    confined to two extreme options for relief  a stay of proceedings or a mere
    adjournment  neither of which may be appropriate and just in the
    circumstances. Since untimely pre-trial disclosure will rarely merit a stay of
    proceedings when the court can protect the fairness of the trial with a
    disclosure order denying the provincial offences court the jurisdiction to
    issue a costs award may deprive it of the only effective remedy to control its
    process and recognize the harm incurred, even in cases involving unjustified
    and flagrant disregard for the accuseds rights. In these circumstances, the
    issuance of a costs award is a quintessential example of the development of
    imaginative and innovative remedies when just and appropriate that Lamer J.
    identified as essential to the meaningful enforcement of Charter rights through
    the s. 24 guarantee.



Neither is there any indication that the Crown will be
    subjected to such awards unfairly or arbitrarily. Crown counsel is not held to
    a standard of perfection, and costs awards will not flow from every failure to
    disclose in a timely fashion. Rather, the developing jurisprudence uniformly
    restricts such awards, at a minimum, to circumstances of a
marked and unacceptable departure from the reasonable standards
    expected of the prosecution
. I fail to see how the provision of an
    expedient remedy in such cases, from a trial court that is not only competent
    but also ideally situated to make such an assessment, risks disrupting the existing
    system of justice. [Emphasis added; citations omitted.]

[33]

The
    phrase marked departure is used in many contexts to indicate a deviation from
    a norm that goes beyond mere negligence: see, for example, failure to provide
    necessities of life in
R. v. Cox
, 2011 ONCA 58, 271 OAC 77, at paras.
    29-31; and careless use of a firearm in
R. v. Gosset
, [1993] 3 S.C.R.
    76, at pp. 93-94. In
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, the
    court held, at paras. 33-36, that a mere departure from the standard expected of
    a reasonably prudent person  sufficient for civil negligence  is not
    sufficient for criminal negligence and does not amount to a marked departure
    from the norm: see also
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R. 60, at
    paras. 36-38.

[34]

The
    Supreme Court of Canada has also addressed the concept of a marked and
    substantial departure in the context of criminal negligence causing death. The
    court held that criminal negligence requires a marked and substantial departure
    from the conduct of a reasonably prudent person in circumstances in which the
    accused either recognized and ran an obvious and serious risk or,
    alternatively, gave no thought to that risk:
R. v. A.D.H.
, 2013 SCC 28,
    [2013] 2 S.C.R. 269, at para. 61.

[35]

While
    these examples occur in the context of criminal offences, they give background
    and context to the use of the phrase marked and unacceptable departure in
974649
    Ontario Inc.

[36]

The
    policy reasons underlying a more elevated fault threshold in the context of
    Crown failures to meet disclosure obligations were described in
Henry v.
    British Columbia (Attorney General)
, 2015 SCC 24, [2015] 2 S.C.R. 214, at
    paras. 69-70 and 91:

[All] failures to disclose are not made equal. Highly
    blameworthy conduct, such as the intentional suppression of crucial evidence to
    obtain a conviction at all costs, sits at one end of the spectrum. At the
    other, one finds good faith errors in judgment about the relevance of certain
    tangential information. Both scenarios constitute a breach of an accuseds
Charter
rights. Yet, manifestly, these scenarios do not possess the same persuasive
    force in terms of justifying a
Charter
damages award under s. 24(1).

Given the complex nature of many disclosure decisions, courts
    should be exceedingly wary of setting a liability threshold that would award
Charter
damages for even minor instances of wrongful non-disclosure. Crown counsel
    will, from time to time, make good faith errors. Exposing prosecutors to
    potential liability every time such errors are made would, in my view,
    interfere with the proper execution of prosecutorial functions. Setting the
    liability threshold too low would also pose a considerable risk that baseless
    damages claims against the Crown would proliferate.



It may seem harsh to deny
Charter
damages for cases of
    wrongful non-disclosure which, while less serious, still result in a violation
    of an accuseds
Charter
rights. However, it is a reality that wrongful
    non-disclosures will cover a spectrum of blameworthiness, ranging from the good
    faith error, quickly rectified, to the rare cases of egregious failures to
    disclose exculpatory evidence. Given the policy concerns associated with
    exposing prosecutors to civil liability, it is necessary that the liability
    threshold be set near the high end of the blameworthiness spectrum. In reaching
    this conclusion, I do not purport to create silos of
Charter
violations,
    classifying some as worthy of concern and others as inconsequential. Courts
    should endeavour, as much as possible, to rectify
Charter
breaches
    with appropriate and just remedies. Nevertheless, when it comes to awarding
Charter
damages, courts must be careful not to extend their availability too far.

[37]

Even
    in the context of exposure to civil liability, the broad remedial power provided
    by s. 24(1) may be counter-balanced by the availability of alternate remedies,
    and policy factors that justify restricting the states exposure to civil
    liability, as noted in paras. 38 and 39 of
Henry
:

The first countervailing consideration is the existence of
    alternative remedies. Section 24(1) is a broad remedial provision that provides
    a range of responses to
Charter
violations beyond a monetary award. In
    addition, there may be substantial overlap between private law and s. 24(1)
    actions against the government. Where the state can show that another remedy is
    available to effectively address a
Charter
breach  whether under the
Charter
or in private law  a damages claim may be defeated at the third step of
Ward
.
    For instance, if a declaration of a
Charter
breach would adequately
    achieve the objectives that would otherwise be served by a damages award, then
    granting damages as well as a declaration would be superfluous, and therefore
    inappropriate and unjust in the circumstances:
Ward
,

at para.
    37.

The second countervailing consideration  and the one at issue
    in this case  relates to concerns over good governance.
Ward
does not
    define the phrase [g]ood governance concerns (para. 38), but it serves as a
    compendious term for the policy factors that will justify restricting the
    states exposure to civil liability. As the Chief Justice observed:

In some situations,  the state may establish that an award
    of
Charter
damages would interfere with good governance such that
    damages should not be awarded
unless the state conduct
    meets a minimum threshold of gravity
. [Emphasis added; para. 39.]

[38]

As
    the above-noted passage makes clear, inadvertent error is not enough to justify
    an award of costs for breach of the disclosure obligation and costs awards for
    such breaches will not be routinely ordered in favour of accused persons who
    establish Charter violations:
Ciarniello,
at para. 36. A costs award
    against the Crown will not be an appropriate and just remedy under s. 24(1)
    of the
Charter
absent a finding that the Crowns conduct demonstrated
    a marked and unacceptable departure from the reasonable standards expected of
    the prosecution, or something that is "rare" or "unique"
    that "must at least result in something akin to an extreme hardship on the
    defendant":
Ciarniello
, at paras 31-36; see also
Tiffin
,
    at paras. 93-101.

D.

the trial judge erred in awarding costs against the crown in this case

[39]

The
    trial judge erred in concluding that an award of costs was warranted in this
    case. I come to that conclusion for three reasons.

[40]

First,
    in this case, the trial judge erred in equating negligence with a flagrant or
    marked departure from the norm. There is no suggestion in this case of an
    intentional failure to provide disclosure in a timely fashion. In fact, as
    previously noted, the trial judge expressly found there was no evidence of
    deliberate misconduct on the part of the Crown (or the police for that matter).
    The trial judge essentially found that this case fell through the cracks
    because multiple prosecutors were assigned to it. This was also not a case
    where the Crown failed to disclose exculpatory evidence already in the hands of
    prosecutors, as occurred in
R. v. Logan
(2002), 59 O.R. (3d) 575
    (C.A.). In
Logan
, the Crown failed to disclose notes of a Crown
    interview with an eyewitness until two weeks after the start of the trial. The
    differences between the late disclosed notes and an earlier statement by the
    eyewitness were significant, and significantly weakened the case for the Crown.
    Here, the inadvertent failure to disclose inculpatory evidence because of
    staffing problems did not amount to a flagrant or marked departure from the
    norm expected of a reasonable prosecutor; it was arguably negligent, but did
    not reach the level required to sustain an order for costs against the Crown.

[41]

Second,
    defence inaction was a relevant factor to consider in deciding whether the
    failure to disclose the cell phone records was a marked and unacceptable
    departure. The trial judge gave no weight to this factor. He mischaracterized
    the issue of defence inaction by concluding that a defence request for
    disclosure would have amounted to conscription of the police into conduct of an
    investigation for the accused. The trial judge failed to consider this
    important factor in the assessment of the overall conduct of the Crown. It is well
    recognized that the nature of the disclosure process makes it prone to human
    error. It is a process which engages both the Crown and the defence. Here, the
    Crown indicated that it intended to produce the cell phone records. Defence counsel
    was apparently silent when these records were not produced, perhaps for good
    reason. As explained in
R. v. Dixon
, [1998] 1 S.C.R. 244, at paras. 37
    and 38:

The fair and efficient functioning of the criminal justice
    system requires that defence counsel exercise due diligence in actively seeking
    and pursuing Crown disclosure. The very nature of the disclosure process makes
    it prone to human error and vulnerable to attack. As officers of the court,
    defence counsel have an obligation to pursue disclosure diligently. When
    counsel becomes or ought to become aware, from other relevant material produced
    by the Crown, of a failure to disclose further material, counsel must not
    remain passive. Rather, they must diligently pursue disclosure.



If defence counsel knew or ought to have known on the basis of
    other disclosures that the Crown through inadvertence had failed to disclose
    information and yet remained passive as a result of a tactical decision or lack
    of due diligence, it would be difficult to accept a submission that the failure
    to disclose affected the fairness of the trial process.

[42]

The
    Crown advised the defence of its intention to disclose the material so there
    was no question of the defence being entitled to the material and no basis to
    conclude that the respondents, in asking for what the Crown had already
    promised to them, would be doing anything but acting diligently. Failure on the
    part of the defence to pursue outstanding disclosure diligently must at least
    be considered in assessing the failures of the Crown and determining where the
    Crowns conduct falls on the spectrum.

[43]

Third,
    the trial judge erred in awarding costs on the ground of extreme hardship. He
    held at para. 96:

Further, regarding a costs award pursuant to section 24(1), I
    have found numerous breaches of section 7 which have necessitated a mistrial in
    this matter due to the negligence of both the Crown and the police. That
    negligence has resulted in the three accused, through no fault of their own,
    incurring hundreds of thousands of dollars in legal costs that could have been
    avoided had the prosecution provided timely disclosure as they were obligated
    to do. I find that this is one of those rare and unique circumstances where it
    would work an extreme hardship on the accused to pay these extensive legal
    fees. Accordingly, a costs award is an appropriate and just section 24(1)
    remedy in these circumstances.

[44]

There
    was no evidence of extreme hardship, or that the respondents were unable to
    defend themselves. There was nothing to suggest that this case was in any way
    unique or exceptional. The fact that the accused had incurred costs which might
    have been avoided is, without more, an ordinary and expected outcome of a
    mistrial. In
Tiffin
, at para. 98, this court held that, even though
    the defendants in that case had suffered a serious
Charter
breach, the
    circumstances of that case did not justify a costs award.

[45]

Furthermore,
    here the trial judge visited police failings on the Crown. As noted in
Tiffin
,
    at para. 96, costs orders will not be made against the Crown for the misconduct
    of other parties, such as witnesses or investigative agencies, unless the Crown
    has participated in the misconduct. Where some other party has engaged in
    misconduct, the appropriate remedy is a civil claim for damages. The Crown
    could not reasonably be expected to search police offices for the lost wallet,
    or prevent that loss.

E.

Quantum of the costs award

[46]

Since
    I would set the costs order aside, it is not necessary to comment on the issue
    of the amount of costs to be ordered for breach of the Crown duty of
    disclosure, but some remarks should be made about the trial judges assessment
    of those costs.

[47]

As
    noted by McLachlin C.J.C. in
Ward
, at para. 46: The watchword of
    s. 24(1) is that the remedy must be appropriate and just. This applies
    to the amount, or quantum, of damages awarded as much as to the initial
    question of whether damages are a proper remedy. For the reasons that follow,
    even if costs were warranted, the quantum of costs awarded by the trial judge
    was not appropriate and just.

(1)

Did the trial judge err in importing the civil costs regime?

[48]

In
    my view, it is an error to import the civil costs regime into the criminal law
    context, for three reasons.

[49]

First,
    the trial judge erred in concluding that the
Criminal Proceedings Rule
permitted him to import the civil costs regime by analogy. The
Criminal
    Proceedings Rules
provide in rule 1.04(2) that [w]here matters are not
    provided for in these rules, the practice shall be determined by analogy to
    them. This rule provides that a matter not explicitly provided for may be
    determined by analogy to the
Criminal Proceedings Rule
; it does not
    permit an analogy to the
Rules of Civil Procedure
.

[50]

That
    fact becomes even clearer when the
Criminal Proceedings Rules
are
    compared to rule 2(1) of the
Criminal Appeal Rules,
SI/93-169. That
    rule provides that [e]xcept where otherwise provided by the Code, a statute or
    these rules, the
Rules of Civil Procedure
where appropriate and with
    necessary modifications apply to criminal appeals.

[51]

Second,
    there is a fundamental difference in the purpose for awarding costs in the
    civil context versus the criminal one. Costs in civil cases are intended to
    partially indemnify a litigant, to encourage settlement, to deter frivolous
    proceedings, and to discourage unnecessary steps:
Boucher v. Public
    Accountants Council for the Province of Ontario
(2004), 71 O.R. (3d) 291
    (C.A.);
1465778 Ontario Inc. v. 1122077 Ontario Ltd
. (2006), 82 O.R.
    (3d) 757 (C.A.).

[52]

Costs
    awarded in the criminal context, on the other hand, serve an entirely different
    purpose. As Sharpe J.A. observed in
Ciarniello
, at paras. 32-33:

Routine costs awards in favour of the winning party are a
    feature of civil, not criminal proceedings. Costs awards in civil litigation
    serve several purposes. Costs in civil cases are awarded on the compensatory
    principle that it is just to allow the successful civil litigant at least
    partial indemnity for the costs of the action. Costs sanctions are also an
    important tool at the disposal of civil courts to control proceedings and to
    discourage unreasonable or inappropriate behaviour. Especially when fortified
    with offer to settle rules that penalize unreasonable litigation, the threat of
    an adverse costs award serves to discourage unnecessary or frivolous litigation
    and encourages parties to settle their disputes.

Different considerations apply to criminal proceedings.
    Criminal proceedings are brought in the public interest, not by one party to
    vindicate his or her private interests as against another. As Devlin L.J.
    explained in
Berry v. British Transport Commission
, [1962] 1 Q.B. 306,
    [1961] 3 All E.R. 65 (C.A.), at p. 327 Q.B.: "A plaintiff brings an action
    for his own ends and to benefit himself; it is therefore just that if he loses
    he should pay the costs. A prosecutor brings proceedings in the public
    interest, and so should be treated more tenderly." Costs are not usually
    deployed in criminal law to influence the conduct of litigation. The threat of
    conviction and loss of liberty provides an adequate incentive to the accused to
    defend the case. As the Crown acts in the public interest when conducting criminal
    prosecutions, it is said that its discretion should not be influenced or
    fettered by the threat of a costs award. As explained by McFadyen J.A. in
R.
    v. Robinson
, [1999] A.J. No. 1469, 142 C.C.C. (3d) 303 (C.A.), at para. 29:

The reasons for limiting costs are that the Crown is not an
    ordinary litigant, does not win or lose criminal cases, and conducts
    prosecutions and makes decisions respecting prosecutions in the public
    interest. In the absence of proof of misconduct, an award of costs against the
    Crown would be a harsh penalty for Crown officer carrying out such public
    duties.

[53]

Costs
    awarded against the Crown for falling short of its disclosure obligations in
    criminal proceedings are intended as a means of disciplining and discouraging
    flagrant and unjustified incidents of non-disclosure:
974649 Ontario Inc.,
at para. 81. While there may be some element of compensation, indemnity is
    not the focus. Rather the purpose of the costs award is to ensure that an
    accused is not effectively deprived of the ability to mount a defence because
    of the costs associated with the failure to disclose.

[54]

The
    moderating effect of the Crowns public duties on costs award is evident even
    in cases where the beneficiary of the award is not an accused. In
Ciarniello
for example, a third party who was never charged, and not the target of the
    investigation, successfully challenged seizure of property pursuant to a search
    warrant. The application judge found that there had been a serious breach of the
    third partys
Charter
rights. The bill of costs totalled over $87,000,
    of which the appellant was expected to pay about $28,000, given his limited
    means. Costs were awarded to the third party in the sum of $20,000.

[55]

The
    purpose for awarding costs against the Crown in criminal proceedings is
    fundamentally different from those associated with costs in a civil proceeding.
    Therefore, different considerations must apply to how costs are quantified.

[56]

Third,
    the
Rules of Civil Procedure
contemplate the losing party paying the
    costs of the winning party through private funds and not a situation where
    the payment of costs comes out of the public purse. This court noted in
R.
    v. Figueroa
(2003), 64 O.R. (3d) 321, that the costs provisions under the
Rules
    of Civil Procedure
are ill-suited to a context where funds to be paid come
    from public funds.
Figueroa
dealt with the question of what
    remuneration rate should apply to an independent prosecutor appointed by the
    court. Goudge J.A. stated, at paras. 24, 29, and 31:

Nor is Rule 57 of the
Rules of Civil Procedure
, and
    the cost grid which accompanies it, of great assistance. It is meant to apply
    to civil proceedings where one party (normally the losing party) has been
    ordered to pay costs to another party (normally the winning party) in the
    litigation.



[I]t must be remembered that the rate fixed for the independent
    prosecutor will be paid from public funds. In an age where there are so many
    pressing needs taxing that resource, I do not think that it should be used to
    pay at private sector rates.



Viewed in the context I have described, I think the trial judge
    erred in fixing the rate for the independent prosecutor. He appears to have
    considered only counsels normal rate which Mr. Shields acknowledged to be
    his normal rate for private sector clients. It is of no moment that this rate
    is within the range provided by the costs grid in the
Rules of Civil
    Procedure
for the substantial indemnity of a party whose lawyer has Mr.
    Shields years at the bar. The costs grid is part of the process provided by
    Rule 57, which, as I have said, is for an entirely different purpose  namely,
    the quantifying of costs ordered to be paid by one litigant to another
    litigant. Moreover, even when applied in its proper context, the costs grid
    should not be simply to sanction a lawyers marketplace rate.

[57]

While
    arising in a different context, Goudge J.A.s comments are equally applicable
    to the issue of awarding costs against the Crown in a criminal proceeding. In
    my view, quantifying a costs award against the Crown in a criminal context
    requires a trial judge to exercise discretion and adjust rates and overall
    costs requested by the accused having regard for the fact that the funds are
    coming from the public purse and that the purpose of a costs award against the
    Crown in a criminal context is to provide a reasonable portion of the costs
    an accused incurs to secure his
Charter
rights, as per
Ciarniello.
See also
Zesta Engineering Ltd. v. Cloutier
(2002),

21
    C.C.E.L. (3d) 161 (Ont. C.A.), at para 4. How the precise calculation should be
    done, as noted, is a matter for the trial judges discretion, but the following
    factors should be considered where the issue is non-disclosure:

·

the nature of the case and the legal complexity of the work done;

·

the length of the proceedings;

·

the nature and extent of the misconduct found;

·

the impact of the misconduct on the rights of the accused;

·

the efforts (or lack thereof) of defence counsel to diligently
    follow up on disclosure; and

·

the actual impact upon the accuseds ability to defend the
    charges in the future.

[58]

The
    last factor brings me to the final point to be addressed  the legally-aided
    accused. The intervener, Legal Aid Ontario (LAO), asserts that whether a
    party is legally-aided and the fee arrangement between the party and LAO are
    irrelevant, privileged and/or confidential, and should not be disclosed or be a
    factor in quantifying a costs award against the Crown. I will first consider
    whether the fact that an accused is legally-aided constitutes privileged
    information, and then whether that fact is relevant to the quantum of costs
    awarded against the Crown.

(2)

Is the fact that an accused is legally-aided and the accuseds fee
    arrangement with LAO privileged?

[59]

The
    Supreme Court of Canada noted in
Maranda v. Richer
, 2003 SCC 67,
    [2003] 3 S.C.R. 193, at para 32, that there may be widely varying aspects to a
    professional relationship between a solicitor and a client. The existence of a
    lawyers bill of account and its payment arises out of the solicitor-client
    relationship and must, as a general rule, be regarded as an element of that
    relationship.

[60]

However,
Maranda
and the Supreme Court of Canadas later decision in
R. v.
    Cunningham,
2010 SCC 10, [2010] 1 S.C.R. 331, also make two principles
    clear. First, the purpose for and context in which information is sought is
    highly relevant when determining whether the information at issue is protected
    by privilege. Second, the presumption of privilege can be rebutted where
    disclosure will not violate the confidentiality of the solicitor-client
    relationship by revealing, directly or indirectly, any communication protected
    by the privilege. This court has adopted and applied these principles in
    several cases: see, for example,
Ontario (Attorney-General) v. Ontario
    (Assistant Information & Privacy Commissioner
, 197 O.A.C. 278 (C.A.);
Re
    Kaiser
,

2012 ONCA 838, 113 O.R. (3d) 308.

[61]

In
Maranda,
the information at issue was sought to further a criminal
    investigation targeting the client. Here, the context here is very different.
    It is difficult to see how disclosure of the fact that an accused was
    legally-aided and the fee arrangement, for purposes of tabulating an
    appropriate costs award, are protected by privilege. As the court noted in
Cunningham
,

at para. 32, disclosure of information related to fees paid, where it is
    unrelated to the merits of a case and will not cause prejudice to the client,
    does not attract the protection of solicitor-client privilege.

In my
    view, the fact that a client is legally-aided (a fact routinely revealed in
    trial and appellate courts for purposes of case management) does not constitute
    privileged information. Depending on the purpose for which the information is
    sought, the specific details of the fee arrangement may also not give rise to a
    presumption of privilege. An accused who claims costs against the Crown, based
    in part on his counsels account, must expect that the account will be
    scrutinized for reasonableness.

[62]

However,
    even assuming privilege applied to the details of a fee arrangement in this
    context, it can be rebutted by evidence showing either (1) that there is no
    reasonable possibility that disclosure of the requested information will lead,
    directly or indirectly, to the exposure of solicitor-client communications, or
    (2) that the requested information is not linked to the merits of the case and
    its disclosure does not prejudice the client:
Re Kaiser
,

at para.
    30;
Cunningham
,

at paras. 30-31;
Maranda
,

at
    para 34.


[63]

In
    the circumstances of this case, revealing an accuseds status as legally-aided
    or their fee arrangement is not likely to reveal, directly or indirectly,
    communications between the client and his solicitor. Nor is there any
    possibility of prejudicing the client, given that the information is not linked
    to the merits of the case.

(3)

Is the fact that a client was legally-aided relevant to a determination
    of a costs award against the Crown in a criminal proceeding?

[64]

As
    noted, LAO argues that the fact that an accused is legally-aided is irrelevant
    to the quantum of any costs awarded. Their position is that costs should be
    quantified on the basis of counsels usual rates. LAO bases its argument on s.
    46 of the
LASA
which stipulates that costs awarded for legally-aided
    clients must be based on the lawyers rate, not the hourly rate established by
    LAO.

[65]

In
    my view, the fact that one or two of the respondents was legally-aided was
    relevant when determining if either suffered financial hardship, and if either was
    deprived of the ability to defend himself because of financial hardship. It
    goes directly to the issue of whether a costs award should have been granted
    based on the second branch of the test set out in
Ciarniello
.

[66]

Further,
    the fact that one or two of the respondents was legally-aided was also relevant
    to the quantum of costs. I have already discussed the policy considerations at
    play in making a costs award against the Crown in a criminal context generally.
    In a criminal law context, as noted, indemnification is not a primary objective
    when awarding costs. That is particularly true when, as in this case, payment
    is being sought from one public purse (i.e. the Crown) for another (i.e. LAO).
    It may be appropriate to fix a moderate amount to denounce non-disclosure in
    the case before the court and to deter future non-disclosure. However, an
    accused seeking costs should not expect to recover costs well in excess of the
    amount actually expended for his defence, even if those costs become the
    property of the legal aid plan.

[67]

Moreover,
    s. 46(1) of the
LASA
cannot be construed to limit the courts power
    under s. 24(1) of the
Charter
to create appropriate and just
    remedies for
Charter
violations. In the context of a
Charter
remedy,
    the discretion granted to the courts to create an appropriate and just remedy
    is very broad:
Mills v. The Queen,
[1986] 1 S.C.R. 863;
Ward,
at paras 16-18. As observed in
Doucet-Boudreau v. Nova Scotia (Minister of
    Education),
2003 SCC 62, [2003] 2 S.C.R. 3, at paras 55-58, an appropriate
    remedy will: (1) meaningfully vindicate the rights and freedoms of the
    claimants; (2) employ means that are legitimate within the framework of our
    constitutional democracy; (3) be a judicial remedy which vindicates the right
    while invoking the function and powers of a court; and (4) be fair to the party
    against whom the order is made. Furthermore, as the court observed at para. 51,
    the power to grant remedies under s. 24(1) is part of the supreme law of
    Canada. It follows that this remedial power cannot be strictly limited by
    statutes or rules of the common law.

[68]

Interpreting
    s. 46(1) of the
LASA
and related jurisprudence in civil cases as determinative
    of how costs will be quantified in a criminal proceeding goes well beyond its
    scope of application. This court was not directed to any cases in which s. 46(1)
    of the
LASA
was successfully invoked to dictate how the court should
    fashion a costs remedy for a
Charter
breach in a criminal context. For
    the reasons noted above, s. 46(1) of the
LASA
ought not to be given
    such an expansive interpretation.

F.

Disposition

[69]

In
    this case, the failure to disclose the cell phone records was inadvertent, and
    was not pursued by defence counsel. The respondents were granted a mistrial,
    and there was no evidence that they were rendered unable to defend themselves. If
    costs had been appropriate, a significantly more modest amount would have been
    sufficient to accomplish the purposes of an order for costs in this context
    (i.e. to control of the trial process, discipline flagrant and marked failures
    to disclose and provide some element of indemnity for costs actually incurred).
    The costs awarded went well beyond any account rendered to LAO, another public
    institution.

[70]

For
    the reasons noted, I would allow the appeal and set aside the orders for costs
    below.

Released: (E.E.G.) February 8, 2016

G. Pardu J.A.

I agree E.E. Gillese
    J.A.

I agree David Watt
    J.A.


