DATE: May 20, 2008
SUBJECT: The procedure to follow in respect of applications for costs against the Crown in the context
of an alleged breach of the accused’s rights under the Canadian Charter of Rights and Freedoms
To provide an updated uniform approach to applications under the Charter of Rights and Freedoms in which the applicant seeks a form of monetary compensation for breaches of the Charter, and to gather information regarding successful applications to provide a background for appropriate Departmental approach to the type of issues, such as disclosure, that result in costs awards.
Historically, the awarding of costs in criminal proceedings, either for or against the Crown, has been rare. The authority to award costs comes both from the common law, based on the inherent jurisdiction of a superior court to control its process, and, more recently, pursuant to an application for relief under s. 24(1) of the Charter of Rights and Freedoms following the finding of a Charter breach. The s. 24(1) remedy is available to both the superior courts and inferior tribunals such as the Provincial Court of Alberta.
Since the confirmation by the Supreme Court of Canada of the ability of trial courts to make such awards under the Charter (R. v. 974649 Ont. Inc.  SCC 81), there have been an increasing number of such costs applications. These applications are almost exclusively related to a breach of the Crown’s obligation to disclose.
Although procedural requirements for Charter applications are now a part of our jurisprudence, these applications are often brought in an informal way following the finding of a Charter breach, limiting the Crown Prosecutor’s ability to effectively address the issues.
- When it comes to the Crown prosecutor’s attention that an application for monetary compensation will be made based on an alleged violation of the Charter of Rights and Freedoms, the Crown prosecutor should require the applicant to specify, on the record, whether the application is for ‘costs’ or ‘damages’, or both, and ensure that the characterization of the type of award is correct.
- If the application contains an amount that is properly characterized as damages, the Crown prosecutor should take the position that the applicant is seeking a fundamentally civil remedy and that the matter should be brought before a civil court.
- The Crown prosecutor notified of a hearing for costs shall advise the responsible Chief Crown Prosecutor as soon as possible and, if necessary, seek an adjournment in order to do so.
- The Crown prosecutor, in consultation with his or her Chief Crown Prosecutor, should consider whether a different Crown prosecutor should assume conduct of the costs hearing. The resolution of this issue will depend upon the nature of the allegation that give rise to the application (e.g., a claim of misconduct by the original Crown prosecutor may give rise to a conflict of interest) and will depend upon whether the facts are in dispute (e.g., a disagreement regarding the facts may necessitate the original Crown prosecutor becoming a witness).
- If the application is for costs alone, in reply the Crown prosecutor should bear in mind the principles of procedural fairness set out in R. v. Dwernychuk (1993) 77 CCC (3d) 385 (Alta. CA) and seek the opportunity to challenge the Applicant’s facts, call reply evidence in relation to both the alleged Charter breach and, if a breach is found, the level of deviation from reasonable Crown practice and the reasons for that deviation. If the Court determines a costs award is appropriate, the Crown should also make representations with respect to the quantum and the basis of the calculations the court uses to arrive at that quantum.
- At the conclusion of the application for Charter costs, the Crown prosecutor shall inform the responsible Chief Crown Prosecutor of the outcome.
- The responsible Chief Crown Prosecutor shall inform the Director of the Appeals Branch of the particulars of successful Charter costs applications.