Costs Against the Crown

• Author: Matthew Asma/Matthew Gourlay
• Pages: 147-172

147

Costs Against

the Crown

5

I. Introduction ............................................. 

II. Key Concepts in This Chapter ............................... 

III. The Purpose of Costs in Criminal Cases ....................... 

IV. The “Marked and Unacceptable Departure” Test ................ 

V. The “Extreme Hardship” Test ................................ 

VI. Determining the Quantum of a Costs Award ................... 

VII. Procedural Guidance ...................................... 

VIII. Costs in Specic Situations ................................. 

A. Searches ........................................... 

B. Bail Hearings ....................................... 

C. Disclosure ......................................... 

D. Unreasonable Delay of Trial ............................ 

E. Forfeiture Proceedings ................................ 

F. Test Case Litigation .................................. 

IX. Situations Where Costs Cannot Be Ordered .................... 

A. Investigative Conduct ................................ 

B. Crown Stay or Withdrawal in Provincial Court ............. 

C. Costs of an Appeal from a Trial by Indictment ............. 

D. Part XX. Review Board Proceedings .................... 

X. Appeals ................................................. 

A. Appealing a Costs Order .............................. 

B. Obtaining Costs of an Appeal .......................... 

© 2023 Emond Montgomery Publications. All Rights Reserved.

148 Charter Remedies in Criminal Cases

I. Introduction

An order against the Crown awarding legal costs—that is, money paid for legal

expenses incurred by the other party—is a recognized Charter remedy under section

24(1). However, appellate courts have consistently held that costs against the Crown

will only rarely be an “appropriate and just” remedy in criminal proceedings.

Unlike in civil litigation, legal costs awards are not routine in criminal cases and

are not awarded merely because the claimant is the successful party in the litigation.1

Rather, the Charter claimant is required to prove serious fault in the Crown’s conduct

of the litigation. Negligence by the Crown is not enough to justify costs.2 Rather, the

legal test requires proof that the Charter-violating conduct3 of the Crown constitutes

a “marked and unacceptable departure” from the standards expected of the prosecu-

tion.4 That said, once the impugned Crown conduct is shown to have been a marked

and unacceptable departure, there is no obligation to go further and show that the

conduct was “egregious.”5

Alternatively, where the claimant is not the accused in a criminal prosecution,

costs against the Crown are available where rare or unique consequences flowing from

the Crown’s conduct have caused “extreme hardship” to the claimant.6 The precise

contours of this alternative test are less well defined by the existing jurisprudence.

An award of legal costs against the Crown is available only in response to miscon-

duct by the Crown in the litigation. Misconduct by a third party, such as the police,

cannot result in an award of costs against the Crown unless the Crown is also a par-

ticipant in that misconduct.7

II. Key Concepts in This Chapter

• Costs awards in criminal cases are aimed at regulating the conduct of the litiga-

tion, not at compensating for an underlying wrong. Thus, costs must be dis-

tinguished from damages, which can be obtained only through a separate civil

action.

• Awards of legal costs in criminal litigation are exceptional and are not routinely

awarded to the successful party.

1 R v M(CA), [1996] 1 SCR 500 at para 97, 1996 CanLII 230; R v Ciarniello, 2006 CanLII 29633,

81 OR (3d) 561 (CA) at paras 32-33; R v Martin, 2016 ONCA 840 at para 49.

2 R v Singh, 2016 ONCA 108 at para 40.

3 R v AK, 2016 NLCA 23 at paras 23-26.

4 R v 974649 Ontario Inc, 2001 SCC 81 at para 87 [Dunedin Construction].

5 R v Melrose, 2016 BCCA 292 at para 36.

6 R v Ciarniello, supra note 1 at paras 39-45; R v Tin, 2008 ONCA 306 at paras 97-98; R v

Singh, supra note 2 at paras 38, 43-44.

7 R v LeBlanc, 1999 NSCA 170 at para 16; R v Tin, supra note 6 at para 96; R v Taylor, 2008

NSCA 5 at paras 56-67; R v Singh, supra note 2 at para 45.

© 2023 Emond Montgomery Publications. All Rights Reserved.