Hirji v. Alberta et al., 2004 ABPC 92

• Judge: Delong, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 24, 2003
• Citations: 2004 ABPC 92;(2004), 375 A.R. 243 (PC)

Hirji v. Alta. (2004), 375 A.R. 243 (PC)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JA.046

Sameer Hirji (applicant) v. Her Majesty the Queen in Right of Alberta and Chief Jack Beaton, as representative of the Calgary Police Service (respondents)

(006337877P10101; 2004 ABPC 92)

Indexed As: Hirji v. Alberta et al.

Alberta Provincial Court

Delong, P.C.J.

December 29, 2004.

Summary:

The accused was charged with causing a disturbance and resisting a peace officer. As part of his defence, the accused applied for disclosure of documents related to the arresting officers. The application was allowed. Subsequently, the Crown stayed the charges against the accused. The accused applied for an order for costs against the Crown and the police service on the successful disclosure application.

The Alberta Provincial Court allowed the application in part, finding that it had jurisdiction to hear an application for costs against the Crown if the application were continued, but that it was inappropriate to assume jurisdiction to hear an application for costs against the police service.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The accused was charged with causing a disturbance and resisting a peace officer - The accused asserted that he had been assaulted by the arresting officers - As part of his defence, the accused applied for disclosure of documents related to the officers - The application was allowed - Subsequently, the charges against the accused were stayed - The accused applied for an order for costs on the disclosure application against the police service and the Crown - The Alberta Provincial Court accepted the application in part - It was well-settled that a provincial court judge hearing a trial on an information under the Criminal Code of Canada had the power to order costs against the Crown to remedy a breach of Charter rights - If the application for costs against the Crown were continued, the test to be applied was whether there was some degree of misconduct or a marked and unacceptable departure from the reasonable standard expected of the Crown - See paragraphs 8 to 13 and 25 to 28.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The accused was charged with causing a disturbance and resisting a peace officer - The accused asserted that he had been assaulted by the arresting officers - As part of his defence, the accused applied for disclosure of documents related to the arresting officers - The application was allowed - Subsequently, the charges against the accused were stayed - The accused applied for an order for costs against the Crown and the police service on the disclosure application - The accused argued that an order for costs against the police service under the Charter was appropriate because the police service was a government actor - The Alberta Provincial Court accepted the argument in part - The police service was divisible from the concept of the Crown - However, having been granted status to intervene, the police service assumed a responsibility to the Court and the applicant and was therefore subject to an order of costs in certain circumstances - The test to be applied in an application for costs against a third party was to be set at a higher standard than the test against the Crown - A party that created undue costs could not expect to be exempt from the remedy of costs - A third party's simple pursuit of its right to protect its interests by applying to the court was not a basis to order costs - See paragraphs 14 to 19 and 29.

Courts - Topic 2013.1

Jurisdiction - General principles - Criminal cases - Costs - [See both Courts - Topic 8409 ].

Courts - Topic 8409

Provincial courts - Alberta - Provincial Court - Jurisdiction - Costs - The accused was charged with causing a disturbance and resisting a peace officer - As part of his defence, the accused applied for disclosure of documents related to the arresting officers - A number of the documents were ordered to be disclosed - The Chief of the police service and the officers applied for judicial review - Before the judicial review hearing, the Crown stayed the charges against the accused - The judicial review application was adjourned - The accused applied for an order for costs against the Crown and the police service on the successful disclosure application - The police service argued that the stay of proceedings deprived the court of jurisdiction to proceed further - The Alberta Provincial Court rejected that argument - The issue of costs was separate and apart from the criminal proceedings - To accept the police service's argument would be to deny the accused a remedy - See paragraphs 8 to 13.

Courts - Topic 8409

Provincial courts - Alberta - Provincial Court - Jurisdiction - Costs - The accused was charged with causing a disturbance and resisting a peace officer - As part of his defence, the accused applied for disclosure of documents related to the arresting officers - A number of the documents were ordered to be disclosed - The Chief of the police service and the officers applied for judicial review - Before the judicial review hearing, the Crown stayed the charges against the accused - The judicial review application was adjourned - The accused applied for an order for costs against the Crown and the police service on the successful disclosure application - The police service argued that the adjournment of the judicial review application resulted in the suspension of jurisdiction of the Court on the issue of disclosure - The Alberta Provincial Court accepted that argument - It was inappropriate to consider liability for costs arising from an order for disclosure when the issue remained undecided on appeal - See paragraphs 20 to 23.

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - [See first Civil Rights - Topic 8380.7 ].

Practice - Topic 7341

Costs - Costs in criminal proceedings - General - [See both Civil Rights - Topic 8380.7 and both Courts - Topic 8409 ].

Practice - Topic 7350

Costs - Costs in criminal proceedings - Payable by Crown - Conduct of Crown - [See first Civil Rights - Topic 8380.7 ].

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - [See first Civil Rights - Topic 8380.7 ].

Cases Noticed:

R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 8].

R. v. Jones (K.A.) (2000), 273 A.R. 317; 2000 ABQB 544, refd to. [para. 11].

R. v. McKay, Cantrill and Farago, 2003 ABQB 499, refd to. [para. 12].

Eldridge v. British Columbia (Attorney General), [1997] S.C.J. No. 86, refd to. [para. 14].

R. v. Dumont (D.L.) (2002), 308 A.R. 334; 2002 ABPC 44, refd to. [para. 14].

R. v. Spindloe (M.) (2002), 207 Sask.R. 3; 247 W.A.C. 3; 154 C.C.C.(3d) 8 (C.A.), refd to. [para. 15].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 16].

McKinney v. University of Guelph, [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 16].

R. v. Keirsted (J.P.) et al., [2004] A.R. Uned. 472; 2004 ABQB 491, refd to. [para. 19].

R. v. Neil (D.L.) (2003), 320 A.R. 274; 288 W.A.C. 274; 2003 ABCA 45, refd to. [para. 25].

R. v. Henkel (J.E.) et al. (2003), 320 A.R. 206; 288 W.A.C. 206; 2003 ABCA 23, refd to. [para. 27].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 142 C.C.C.(3d) 303 (C.A.), refd to. [para. 27].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 158 C.C.C.(3d) 449, refd to. [para. 29].

R. v. Dix (J.) (2000), 259 A.R. 328 (Q.B.), refd to. [para. 29].

R. v. Derose (A.S.) et al. (2002), 326 A.R. 241 (Prov. Ct.), refd to. [para. 29].

R. v. Cole (D.) (2000), 183 N.S.R.(2d) 263; 568 A.P.R. 263 (C.A.), refd to. [para.29].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481, refd to. [para. 29].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 29].

R. v. R.J.H. (2000), 255 A.R. 320; 220 W.A.C. 320; 2000 ABCA 111, refd to. [para. 29].

R. v. Hunter, [1998] 2 W.W.R. 57; 208 A.R. 321 (Q.B.), refd to [para. 29].

R. v. Batchelor, [1978] 2 S.C.R. 988; 18 N.R. 416, refd to. [para. 29].

R. v. Murrie (1991), 126 A.R. 161 (Q.B.), refd to. [para. 29].

R. v. Rachuk (1986), 71 A.R. 218 (Q.B.), refd to. [para. 29].

R. v. Smith, [1992] B.C.J. No. 2739 (C.A.), refd to. [para. 29].

R. v. Duncan, [1995] B.C.J. No. 674 (C.A.), refd to. [para. 29].

R. v. Primeau (D.J.) (1995), 180 N.R. 101; 131 Sask.R. 198; 95 W.A.C. 198 (S.C.C.), refd to. [para. 29].

L.L.A. v. A.B. - see L.L.A. v. Beharriell.

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 29].

R. v. A.F., [1992] O.J. No. 2906 (Prov. Div.), refd to. [para. 29].

Danson v. Ontario (Attorney General) (1990), 112 N.R. 362; 41 O.A.C. 250 (S.C.C.), refd to. [para. 29].

R. v. Manaloto (R.P.) (2002), 332 A.R. 181; 2002 ABQB 1091, refd to. [para. 29].

Fitzgerald v. Alberta (Attorney General), [2003] A.R. Uned. 85; 2003 ABPC 18, refd to. [para. 29].

R. v. Lapointe (C.) (2003), 336 A.R. 110; 2003 ABPC 125, refd to. [para. 29].

R. v. Gunn (P.B.) (2003), 335 A.R. 137 (Q.B.), refd to. [para. 29].

R. v. Gateway Collections Inc. (2004), 360 A.R. 299; 2004 ABPC 93, refd to. [para. 29].

R. v. Nest (D.) et al. (2004), 370 A.R. 201; 2004 ABPC 159, refd to. [para. 29].

R. v. Nethery (M.E.) (2004) 374 A.R. 124; 2004 ABPC 198, refd to. [para. 29].

Counsel:

John James and Angela Byrne, for the applicant;

Clifton Purvis, for the Crown;

Grant Stapon and April Grosse, for the respondent, Chief Jack Beaton, as representative of the Calgary Police Service.

This application was heard on January 24, 2003, by Delong, J., of the Alberta Provincial Court, who delivered the following judgment on December 29, 2004.