View source for Costs

{{LevelZero}}{{HeaderPreTrial}}

==General Principles==
Costs against the Crown require Crown misconduct or a serious interference with the authority of the court or administration of justice.
<ref>
''R v Magda'', [http://canlii.ca/t/1pwz2 2006 CanLII 36822] (ON CA){{perONCA|Feldman JA}}<br>
''R v Griffin'', [http://canlii.ca/t/274zn 2009 ABQB 696] (CanLII){{perABQB|Greckol J}}{{atL|274zn|176}}<br>
</ref>

Costs against the Crown are "an exceptional or remarkable event".<ref>
''R v 974649 Ontario Inc'', [http://canlii.ca/t/51xh 2001 SCC 81] (CanLII), [2001] 3 SCR 575{{perSCC|McLachlin CJ}}{{atL|51xh|86}}</ref> 
Costs may be ordered as a remedy to a Charter breach.<ref>
''R v Singh'', [http://canlii.ca/t/26c69 2009 NSSC 306] (CanLII){{perNSSC|Duncan J}}{{atL|26c69|25}} - it must be ordered by a superior court judge<br>
''R v Ralph'', [http://canlii.ca/t/2208b 2008 NLCA 71] (CanLII){{perNLCA|Mercer JA}}{{atL|2208b|12}}<br>
''R v Pang'', [http://canlii.ca/t/1nnxb 1994 ABCA 371] (CanLII){{perABCA|Harradence JA}}</ref> 
Not just any Charter breach will result in costs.<ref>
''R v SEL'', [http://canlii.ca/t/fw0l7 2013 ABCA 45] (CanLII){{perABCA|Bielby JA}}{{atL|fw0l7|9}}<br>
</ref> 
It should be conduct where the Crown is "reponsible for some misconduct, complicit in it, or other unique circumstances exist."<ref>
''R v Taylor'', [http://canlii.ca/t/1vn7m 2008 NSCA 5] (CanLII){{perNSCA|Saunders JA}}{{atL|1vn7m|43}}<br>
</ref>

The reason behind this is that costs would have the effect of deterring the Crown from exercising their duties in the public interest to the fullest extent.<ref>
{{supra1|Ralph}}{{atL|2208b|13}}<br>
{{supra1|Taylor}}{{atL|1vn7m|43}}</ref>

While there is no closed list of circumstances, situations where costs may be ordered against the Crown is where the prosecution has been (1) frivolous, (2) for an oblique motive, or (3) where the Crown has taken up the matter as a test case.<ref> 
''R v King'', [http://canlii.ca/t/22kkw 1986 CanLII 1156] (BC CA), (1986), 26 CCC (3d) 349 (BCCA){{perBCCA|Lambert JA}}{{atL|22kkw|13}}<br>
see also ''R v Neustaedter'', [http://canlii.ca/t/1hm6j 2003 BCSC 39] (CanLII){{perBCSC|Stromberg-Stein J}}{{atL|1hm6j|7}}<br>
</ref>

; Jurisdiction
The "jurisdiction for awarding costs in criminal matters is extremely narrow and the threshold is very high."<ref>
''R v Leyshon‑Hughes'', [http://canlii.ca/t/222qs 2009 ONCA 16] (CanLII), 240 CCC (3d) 181{{perONCA|Simmons JA}}{{atL|222qs|55}}</ref>

In determining whether there should be costs against the Crown, the Court may apply its "inherent power to protect against abuse of process".<ref>
''Canada (Attorney General) v Foster'', [http://canlii.ca/t/1q1b0 2006 CanLII 38732](ON CA), (2006), 215 CCC (3d) 59 (Ont. C.A.){{perONCA|Rosenberg JA}}{{atL|1q1b0|69}}</ref> 

A provincial court has no jurisdiction to order punitive costs against the defence.<ref>
''R v Gunn'', [http://canlii.ca/t/5bw4 2003 ABQB 314] (CanLII){{perABQB|Langston J}}{{atL|5bw4|48}}<br>
</ref>

A preliminary inquiry judge does not have the jurisdiction to make orders of cost against the crown.<ref>
''R v Howard'', [http://canlii.ca/t/271mk 2009 PECA 27] (CanLII){{perPEICA|Jenkins CJ}} – Application for costs due to delay of disclosure</ref>

A Youth Justice Court sitting as a trial court has jurisdiction to award costs against the Crown for a Charter breach.<ref>
''R v Mills'', [http://canlii.ca/t/1cxmx 1986 CanLII 17] (SCC), [1986] 1 SCR 863{{perSCC|McIntyre J}}<br>
''R v Conway'', [http://canlii.ca/t/2b2ds 2010 SCC 22] (CanLII), [2010] 1 SCR 765{{perSCC|Abella J}}<br>
''R v 974649 Ontario Inc.'', [http://canlii.ca/t/51xh 2001 SCC 81] (CanLII), (2001), 159 CCC (3d) 321{{perSCC|McLachlin CJ}}<br>
</ref>

Where the accused has been arraigned and entered a plea before a court of competent jurisdiction, that court becomes the trial court which may be able to hear costs even after a stay of proceedings is entered.<ref>
''R v CW'', [http://canlii.ca/t/fm6dw 2011 ABPC 205] (CanLII){{perABPC|Lefever J}} - re Youth Justice Court<br>
''R v Pang'', [http://canlii.ca/t/1nnxb 1994 ABCA 371] (CanLII){{perABCA|Harradence JA}} - provincial court permitted in some circumstances<br>
</ref>

A bail hearing judge under section 515 (1) is not a "court of competent jurisdiction" within the meaning of section 24 (1) of the Charter and so has no jurisdiction to order costs against the Crown.<ref>
''R v Menard'', [http://canlii.ca/t/21x7r 2008 BCCA 521] (CanLII){{perBCCA|Finch CJ}}
</ref>

Case management roles created under section 482(3)(c) cannot convey jurisdiction upon the provincial court to order costs outside of the Charter or the Criminal Code.<ref>
''R v Campbell'', [http://canlii.ca/t/1z13v 2008 BCSC 805] (CanLII){{perBCSC|Romilly J}}
</ref>

; Costs Against the Crown
Costs against the Crown are "rare" but are permitted when they are "integrally connected to the court's control of its trial process, and are intended as a means of disciplining and discouraging behaviour".<ref>
''R v Kocet'', [http://canlii.ca/t/grz0l 2016 ONCJ 329] (CanLII){{perONCJ|McKay J}}{{atL|grz0l|6}}<br>
''R v Singh'', [http://canlii.ca/t/gn8gk 2016 ONCA 108] (CanLII){{perONCA|Pardu JA}}<br>
''R v Ferncan Developments'', [http://canlii.ca/t/gpfw4 2016 ONCA 269] (CanLII){{perONCA|LaForme JA}}<br>
</ref>

; Costs Against Defence
There has been some suggestion that costs may also be ordered against the defence in certain circumstances.<ref>
''R v Dumont'', [http://canlii.ca/t/5057 2002 ABPC 44] (CanLII){{perABPC|Lefeber J}}
</ref>

; Appeal
Under s. 676.1, a party ordered to pay costs may appeal the order and amount with leave to the court of appeal.

; Disclosure
Costs as a remedy for failure to provide timely disclosure requires that there be a "marked and unacceptable departure from the reasonable standards expected of the prosecution". It is not necessary to establish a "flagrant disregard for the accused's rights" or "egregious conduct".
<ref>
''R v Henkel'', [http://canlii.ca/t/5drc 2003 ABCA 23] (CanLII), [2003] AJ No 51 (ABCA){{perABCA|Ritter JA}}<br>
''R v Branton'', [http://canlii.ca/t/2fw47 2010 NLTD 207] (CanLII){{perNLSC|Hndrigan J}} - costs awarded for delayed disclosure<br>
</ref>

; Test Case
A "test case" would be one where the Crown persues a valid social purpose by seeking to settle a point of law. This will incur a cost that should not be born by just one individual.<ref>
{{supra1|Ralph}}{{atL|2208b|15}}<br>
''R v Trask'', [http://canlii.ca/t/1ftlt 1987 CanLII 24] (SCC), [1987] 2 SCR 304{{perSCC|McIntyre J}}{{atps|307-308}}<br>
</ref>

However, where the accused "has a significant practical stake in the prosecution, high public interest in the outcome of the proceedings" then it should not be considered a "test case".<ref>
{{supra1|Ralph}}{{atL|2208b|18}}<br>
</ref>
{{reflist|2}}
===Summary Conviction Court===
{{quotation1|
; Costs
809 (1) The summary conviction court may in its discretion award and order such costs as it considers reasonable and not inconsistent with such of the fees established by section 840 {{AnnSec8|840}} as may be taken or allowed in proceedings before that summary conviction court, to be paid
:(a) to the informant by the defendant, where the summary conviction court convicts or makes an order against the defendant; or
:(b) to the defendant by the informant, where the summary conviction court dismisses an information.
; Order set out
(2) An order under subsection (1) {{AnnSec8|809(1)}} shall be set out in the conviction, order or order of dismissal, as the case may be.
<br>
; Costs are part of fine
(3) Where a fine or sum of money or both are adjudged to be paid by a defendant and a term of imprisonment in default of payment is imposed, the defendant is, in default of payment, liable to serve the term of imprisonment imposed, and for the purposes of this subsection, any costs that are awarded against the defendant shall be deemed to be part of the fine or sum of money adjudged to be paid.
<br>
; Where no fine imposed
(4) Where no fine or sum of money is adjudged to be paid by a defendant, but costs are awarded against the defendant or informant, the person who is liable to pay them is, in default of payment, liable to imprisonment for one month.
<br>
; Definition of “costs”
(5) In this section, costs includes the costs and charges, after they have been ascertained, of committing and conveying to prison the person against whom costs have been awarded.
<br>
R.S., c. C-34, s. 744.
{{Annotation}}
|[{{CCCSec|809}} CCC]
}}

==Costs Personally Against Counsel==
There are three sources of authority to order costs against counsel:<Ref>
''R v Gowenlock'', [http://canlii.ca/t/hx9q5 2019 MBCA 5] (CanLII){{perMBCA|Chartier CJ}}{{atL|hx9q5|27}} citing Ruby on Sentencing.
</reF>
# the inherent jurisdcition and the ancillary powers of the court over its own process<Ref>see also ''Quebec (Director of Criminal and Penal Prosecutions) v Jodoin'', [2017] 1 SCR 478, [http://canlii.ca/t/h3q0c 2017 SCC 26] (CanLII){{perSCC|Gascon J}}</ref>
# as a remedy authorized under s. 24(1) of hte Charter <Ref>see also ''R v 974649 Ontario Inc'', 2001 SCC 81 (CanLII){{LinkNeeded}}</ref>
# statute.

Section 482 and 482.1 permit the courts to make rules that would allow personal costs against counsel.<ref>
{{supra1|Gowenlock}}{{atL|hx9q5|63}}
</ref>

; Purpose
The purpose of awarding personal costs against counsel is to enforce compliance with the rules, change "the culture of complacency", "break bad habits" of counsel, and preserve "public confidence in the criminal justice system".<ref>
{{supra1|Gowenlock}}{{atsL|hx9q5|47|}}, {{atsL-np|hx9q5|74|}}, {{atsL|hx9q5|86|}}
</ref>
This will necessarily include a punitive and compensatory element.<ref>
{{supra1|Gowenlock}}{{atL|hx9q5|74}}
</ref> 
By contrast, the purpose of a finding of contempt or abuse of process is purely to punish.<ref>
{{supra1|Gowenlock}}{{atL|hx9q5|75}}
</ref>

; Raising Costs
The issue of costs can be raised by opposing counsel or by the court on its own motion.<ref>
{{supra1|Gowenlock}}{{atL|hx9q5|100}}
</ref>

; Standard of Conduct
In exceptional cases costs can be awarded against a lawyer personally. This typically is where there is some form of wilful misconduct or dishonesty.<ref>
e.g. ''A.G. Quebec v Cronier'' (1981), 63 CCC (3d) 437 (Que. C.A.), [http://canlii.ca/t/gbfzb 1981 CanLII 3179] (QC CA){{perQCCA|L'Heureux-Dube JA}}{{atps|448-449}}<br>
''Pacific Mobile Corp. v Hunter Douglas'', [1979] 1 SCR 842, [http://canlii.ca/t/1z779 1979 CanLII 201] (SCC){{perSCC|Pigeon J}} <br>
</ref>
However, neither "bad faith" nor "wilful misconduct" are required.<ref>
{{supra1|Gowenlock}}{{atL|hx9q5|71}}
</ref>

The power to orders costs should be "exercised with restraint", especially against defence counsel where the right to full answer and defence may be compromised.<ref>
{{supra1|Gowenlock}}{{atsL|hx9q5|79|}} and {{AtsL-np|atL|hx9q5|106|}}<br>
{{supra1|Jodoin}}{{atsL|hx9q5|16| to 17}}<br>
</ref>

There is some suggestion that a standard to be applied is one of a “marked and unacceptable departure from the reasonable standards expected” test.<ref>
{{supra1|Gowenlock}}{{atsL|hx9q5|71|}} ("The “marked and unacceptable departure from the reasonable standards expected” test has also been accepted in additional cases where costs were at issue in a non-Charter and/or statutory context."){{atL-np|hx9q5|80}} ("I would adopt a lower standard of conduct than in Jodoin.  I would opt for the standard set by the Supreme Court of Canada for Charter-infringement cases in 974649 Ontario Inc:  the impugned conduct must be “a marked and unacceptable departure from the reasonable standards expected” ... of counsel, which, for all intents and purposes, is the same as the “reasonable excuse” standard found in r 2.03(1).")
</ref>
The standard of "marked departure" goes beyond mere negligence<Ref>
{{CanLIIR|Singh|gn8gk|2016 ONCA 108 (CanLII)}}{{perONCA|Pardu JA}}{{AtL|gn8gk|33}}
</ref> 
or "inadvertent error".<Ref>
{{ibid1|Singh}}{{atL|gn8gk|38}}
</ref>

Costs should not apply to Charter breaches that are "routinely ordered".<ref>
{{ibid1|Singh}}{{atL|gn8gk|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"{{marks removed}})<br>
{{CanLIIR|Ciarniello|1p6n5|2006 CanLII 29633 (ON CA)}}{{AtL|1p6n5|36}}
</ref>

; Standard of Proof
The standard of balance of probabilities should apply to a motion for costs.<Ref>
{{supra1|Gowenlock}}{{atL|hx9q5|100}}<br>
</ref>

; Procedure
Where costs are being considered, the court should ensure the procedure accomplishes the following:{{supra1|Gowenlock}}{{atL|hx9q5|100}}<br>
# the respondent has a right to notice, including the allegations, evidence, and consequences.
# the respondent has a right to be heard.
# opposing party will usually not have a role in the hearing but may be present.
# Prior conduct outside of proceedings has no bearing at the liability phase, but may at the penalty phase.

The hearing for costs should normally be held after the merits of the initial proceedings are concluded.<ref>
{{supra1|Gowenlock}}{{atL|hx9q5|100}}<br>
</ref>

{{reflist|2}}

==Case Digests==
* ''R v Brown'', [http://canlii.ca/t/25dz4 2009 ONCA 633] (CanLII){{perONCA|Sharpe JA}} - costs of $2000 for Crown continued delay of bail hearing for several weeks. Habeas Corpus application granted.
* ''R v Kelln'', [http://canlii.ca/t/5dr7 2003 SKPC 1] (CanLII){{perSKPC|Snell J}} - $500 costs against Crow for failure to provide officer notes on a timely manner. Notes were provided 11 months after request.
* ''R v Yeun'', [2001] AJ No 1122, [http://canlii.ca/t/5qr6 2001 ABPC 145] (CanLII){{perABPC|Lamoureux JA}} - costs against crown awarded for failure to provide disclosure ($2,200).

==See Also==
* [[Crown Duty to Disclose|Disclosure]] - see section on costs as remedy