Award of costs maintains court integrity, addresses Charter violations

By John L Hill

Law360 Canada (November 2, 2023, 12:06 PM EDT) --
John L. Hill
John L. Hill
Very rarely will a court order costs against the Crown.

The rare exceptions include R. v. Brown 2009 ONCA 633, where the Crown was ordered to pay $2,000 for delaying a bail hearing several weeks; R v. Kelln 2003 SKPC 1, where the Crown failed to produce officer notes in a timely manner; and R. v. Yeun 2001 ABPC 145 where $2,200 in costs against Crown awarded for failure to provide disclosure. These are examples of when Charter rights are impinged.

While these examples suggest that costs can be ordered when delays and procedural requirements are ignored, the Yukon Territory Supreme Court recently ordered the Crown to pay costs where social and cultural norms were violated (R. v. Amin 2023 YKSC 46).

Rudra Amin, a South Asian immigrant to Canada, had been charged with seven counts of sexual assault against three complainants. During the trial, evidence was given about his country of birth, immigration status and attitudes about women in places other than Canada. The Crown, during its closing, was found to have invited a jury to speculate about the complainants’ sexual history and used inflammatory rhetoric that could have resulted in improper reasoning based on myths and stereotypes.

At the conclusion of the Crown’s closing statement, defence counsel successfully moved for a mistrial and sought an order for costs. Defence argued that the Crown engaged in legally impermissible, inflammatory and racial rhetoric amounting to misconduct. The Crown counsel representing his trial counsel counterpart in opposing the motion advanced the position that the trial prosecutor’s errors were made in good faith and failed to meet the threshold necessary to award costs.

An award of costs in a criminal case is granted to maintain the integrity of the court’s process as well as to discipline Charter violations where Crown conduct is flagrantly improper (R. v. 97649 Ontario Inc. 2001 SCC 81). Besides being allowed to condemn Charter violations, the court also has inherent jurisdiction to impose costs in appropriate circumstances (Regina v. Pawlowski*[Indexed as: R. v. Pawlowski], 12 O.R. (3d) 709); R. v. Taylor 2008 NSCA 5).

In this case, the Yukon court agreed the Crown’s conduct violated Amin’s right to a fair trial under s. 7 of the Charter. Still, the defence counsel did not provide sufficient submissions to substantiate a Charter breach. Nonetheless, the court used its inherent jurisdiction to chastise the Crown’s behaviour.

The court concluded on review of the trial transcript that it came close to a marked and unacceptable departure from the reasonable standards of the prosecution. It was held that the Crown probably did not intend to make racist statements or appeal to racist sentiments; the “rhetorical flourishes” suggest the Crown did not stop to think about what was implied by the use of words he uttered.

The importance of this decision is that the threshold is not necessarily proving that the Crown relied on racist sentiment; it is sufficient if the effect of the words could impact the legitimacy of the courts as an institution. The court’s statement is instructive:

“Racial prejudice, xenophobia, and discrimination are ‘intractable features of our society’ (R. v. Spence, 2005 SCC 71 at para 1.). Judges, lawyers, and others in the legal community are not immune to these biases. The court instructs juries to be aware of both conscious and unconscious bias and to strive to cast biases aside. We in the legal community must do the same. That means that we must also be vigilant that the words we use do not incite prejudicial reactions. It is vital that we take this care, as failure to do so not only puts the rights of the accused to a fair trial at risk but also risks harming the administration of justice.”

An award of costs against the Crown is rare and has largely been a remedy when Charter rights have been trampled. While Amin does not hold itself out as establishing a new threshold, the ability to show Crown language or behaviour that threatens to put the administration of justice into disrepute may prove to be an important means to ensure fairness and civility in the courtroom

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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