General Principles

 

A "just and 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: R v Singh, 2016 ONCA 108 at para 67

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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”: Singh at para 67

 

Neither the Superior Court of Justice nor the Summary Conviction Court has jurisdiction to entertain an application for an alleged breach of a Charter right once a stay is entered pursuant to section 579: R v Martin, 2016 ONCA 840 at paras 38, 42

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However, in a situation where a trial judge comes to a final disposition in a matter, including entering a judicial stay of proceedings, he or she retains jurisdiction to craft an appropriate remedy for a Charter violation, including awarding costs, where appropriate. That is because a remedy under s. 24(1) of the Charter, in those circumstances, is part of the trial judge’s discretionary adjudicative process. Martin at para 39 

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Remedy of Costs

 

1) Jurisdiction

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Statutory courts have jurisdiction to hear applications for Charter relief, and grant costs as part of a remedy under s. 24(1). The implied power is linked to the court’s control of its trial process: R v Martin, 2016 ONCA 840 at para 35

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The Summary Conviction Court does not have jurisdiction to hear a costs application when the Crown exercises its prerogative to enter a stay pursuant to section 579 of the Criminal Code because, in these circumstances, the Court's process if not invoked: Martin at para 36

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2) When Available as remedy

 

A trial judge may award costs against the Crown for a breach of its disclosure obligations in circumstances where there is a marked and unacceptable departure from the reasonable standards expected of the prosecution: R v Singh, 2016 ONCA 108 at para 32

 

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 - where conduct such as deliberate failure to disclosure exculpatory evidence lies: Singh at para 36

 

Costs should not be awarded if alternative remedies under s.24(1) can address the Charter breach: Singh at para 37 

 

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: Singh at para 45

 

 

3) Factors to consider

 

The costs award against the Crown should provide “a reasonable portion” of the costs an accused incurs to secure his Charter rights. How the precise calculation should be done, as noted, is a matter for the trial judge’s 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 accused’s ability to defend the charges in the future: Singh at paras 41-42, 57

 

The fact that an accused is legally aided is relevant in determining the last factor - impact on ability to defend charges and whether this was engaged because of financial hardship: Singh at para 65

 

 

4) Quantum

 

 

The fact that an accused is legally aided is relevant ot the quantum of costs: Singh at para 66

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Remedy of a Stay

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The Test

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1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;

2. There must be no alternative remedy capable of redressing the prejudice (E.g., exclusion of evidence or sentence remission: R v Kift, 2016 ONCA 374 at para 5); and

3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits: R v Babos, 2016 SCC 16 at para 32; R v Kift, 2016 ONCA 374 at paras 7-8

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