Costs

This page was last substantively updated or reviewed January 2020. (Rev. # 95341)

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General Principles

Costs against the Crown require Crown misconduct or a serious interference with the authority of the court or administration of justice.

Costs against the Crown are "an exceptional or remarkable event." Costs may be ordered as a remedy to a Charter breach. Not just any Charter breach will result in costs. It should be conduct where the Crown is "reponsible for some misconduct, complicit in it, or other unique circumstances exist."

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.

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.

Jurisdiction

The "jurisdiction for awarding costs in criminal matters is extremely narrow and the threshold is very high."

In determining whether there should be costs against the Crown, the Court may apply its "inherent power to protect against abuse of process."

A provincial court has no jurisdiction to order punitive costs against the defence.

A preliminary inquiry judge does not have the jurisdiction to make orders of cost against the crown.

A Youth Justice Court sitting as a trial court has jurisdiction to award costs against the Crown for a Charter breach.

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.

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.

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.

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."

Costs Against Defence

There has been some suggestion that costs may also be ordered against the defence in certain circumstances.

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".

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.

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."

Summary Conviction Court

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 [fees and allowances] 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) [power to order costs by summary conviction court] shall be set out in the conviction, order or order of dismissal, as the case may be.

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.

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.

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.
R.S., c. C-34, s. 744.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Costs Personally Against Counsel

There are three sources of authority to order costs against counsel:

1. the inherent jurisdcition and the ancillary powers of the court over its own process
2. as a remedy authorized under s. 24(1) of th Charter
3. statute.

Section 482 and 482.1 permit the courts to make rules that would allow personal costs against counsel.

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." This will necessarily include a punitive and compensatory element. By contrast, the purpose of a finding of contempt or abuse of process is purely to punish.

Raising Costs

The issue of costs can be raised by opposing counsel or by the court on its own motion.

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. However, neither "bad faith" nor "wilful misconduct" are required.

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.

There is some suggestion that a standard to be applied is one of a “marked and unacceptable departure from the reasonable standards expected” test. The standard of "marked departure" goes beyond mere negligence or "inadvertent error."

Costs should not apply to Charter breaches that are "routinely ordered."

Standard of Proof

The standard of balance of probabilities should apply to a motion for costs.

Procedure

Where costs are being considered, the court should ensure the procedure accomplishes the following:Gowenlock, supra, at para 100

1. the respondent has a right to notice, including the allegations, evidence, and consequences.
2. the respondent has a right to be heard.
3. opposing party will usually not have a role in the hearing but may be present.
4. 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.

Case Digests

• R v Brown, 2009 ONCA 633 (CanLII), 247 CCC (3d) 11, per Sharpe JA - costs of $2000 for Crown continued delay of bail hearing for several weeks. Habeas Corpus application granted.
• R v Kelln, 2003 SKPC 1 (CanLII), 105 CRR (2d) 366, per 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 ABPC 145 (CanLII), 291 AR 359, per Lamoureux JA - costs against crown awarded for failure to provide disclosure ($2,200).

See Also

• Disclosure - see section on costs as remedy