R. v. Ciarniello

R. v. Ciarniello Collection Decisions of the Court of Appeal Date 2006-08-29 Docket numbers C43810, M33844 Judges Sharpe, Robert J.; Juriansz, Russell G.; Lane, George Dennis Subject Criminal Decision Content DATE: 20060829 DOCKET: C43810, M33844 COURT OF APPEAL FOR ONTARIO SHARPE and JURIANSZ JJ.A. and LANE J. (ad hoc) B E T W E E N : HER MAJESTY THE QUEEN Respondent John McInnes for the respondent - and - RICKEY CIARNIELLO Appellant Alan D. Gold for the appellant Heard: June 15, 2006 On appeal from the judgment of Justice Fletcher Dawson of the Superior Court of Justice dated April 18, 2005, reported at [2005] O.J. No. 1463. SHARPE J.A.: [1] This appeal concerns the availability of costs as s. 24(1) Charter remedy. The Ontario Provincial Police (“O.P.P.”) obtained a search warrant and seized computers and computer records belonging to the appellant. The items were in the possession of the police in British Columbia when seized. Before the Ontario warrant was obtained, the British Columbia Supreme Court had quashed the B.C. warrant pursuant to which the British Columbia police had originally seized the items, and ordered the items returned to the appellant. The appellant was not the target of either police investigation and he was never charged with an offence. [2] The appellant brought an application and successfully challenged the validity of the O.P.P. warrant and secured the return of his property. The application judge found that there had been a serious breach of the appellant’s s. 8 Charter right to be secure against unreasonable search and seizure. The application judge found that there was no bad faith, improper purpose or misconduct on the part of the Crown, but that recklessly misleading evidence had been used to obtain the search warrant and that information in the Crown’s possession, together with some further investigation, “should have led [the authorities] to conclude that there was a probability that the warrant would be quashed.” The application judge denied the appellant’s request for costs, applying “[t]he rule…that costs will only be awarded where there has been serious misconduct on the part of the Crown.” [3] The appellant submits that as he was neither the target of the investigation nor charged as a result, he should not be required to establish serious Crown misconduct as a prerequisite for an award of the costs of his successful Charter challenge to the search warrant. The Crown submits that this court has no jurisdiction to entertain the appeal and, in any event, that the application judge did not err in denying costs. Facts 1. The British Columbia Warrant [4] The Delta Police Department executed a search warrant issued in British Columbia on June 24, 2002, in connection with a police investigation into the Hells Angels. The appellant was not the target of the British Columbia investigation, nor was he ever charged with an offence in British Columbia. The British Columbia warrant was executed by the Delta Police Department at the clubhouse of the Vancouver Chapter of the Hells Angels. Computers and related items belonging to the appellant were seized. The appellant commenced proceedings in the British Columbia Supreme Court to challenge the validity of the search and to assert claims of solicitor-client privilege. Pending final resolution of that litigation, counsel for the appellant and counsel for the British Columbia Crown agreed that the police could examine the materials they had seized, other than material over which privilege was claimed, but that the police would not disseminate any information they obtained from the materials [5] On October 29, 2002, Catliff J. of the British Columbia Supreme Court gave his oral judgment declaring that fourteen of the seventeen categories of items seized pursuant to the British Columbia warrant were unsupported by reasonable and probable grounds. He ordered the return of the items seized under those fourteen categories. The appellant’s counsel and counsel for the Crown could not agree on the scope and implications of Catliff J.’s order. An appointment to settle the order was arranged. Before the order was settled, however, the investigating Delta officer decided that the non-dissemination agreement was no longer in effect. Despite advice from the British Columbia Crown counsel that it would be prudent to wait until after the order was settled, he provided the Brampton O.P.P. with details of the information stored on the seized computer items. 2. The Ontario Warrant [6] The O.P.P. used the information provided by the B.C. police to obtain an Ontario warrant, issued April 14, 2003, authorizing the seizure of the computer items still in the possession of the B.C. Delta Police as a result of the original seizure that Catliff J. had ordered should be returned to the appellant. Again, the appellant was not the target of the O.P.P. investigation, nor was he charged with any offence in Ontario. There were serious problems with the search warrant information. It disclosed neither the non-dissemination agreement nor the existence of the appellant’s claim of solicitor-client privilege. The informant swore that Catliff J. had upheld the validity of the search as it related to the items he was seeking. This was completely incorrect: Catliff J.’s order was to the opposite effect. [7] The existence of the Ontario warrant and the information used to obtain it were brought to Catliff J.’s attention on May 23, 2003, on the motion to settle his earlier order. Catliff J. was concerned that his order had been misrepresented. He directed counsel for the British Columbia Crown to write to the Ontario Crown to “bring to the attention of the authorities in Ontario the fact that the…search warrant issued in Ontario for the premises of the Delta Police Department appears to be fundamentally flawed.” The British Columbia Crown’s letter, dated May 26, 2003, detailed the circumstances of the Delta search, the proceedings brought by the appellant to challenge the Delta search, the order made by Catliff J., and the subsequent proceedings to settle the order. The letter, which requested the voluntary return of the seized material, concluded with the following: Mr. Justice Catliff expressed grave concern over what he perceived to be a total misrepresentation of the scope of his Order respecting the validity of the Delta search warrant. He declined, however, to direct the Crown in BC to obtain the return of the items in the possession of the OPP within the time suggested by [counsel for the appellant]. Rather, Mr. Justice Catliff adjourned the motion to settle to Monday, June 2, 2003 so I could bring the misrepresentation to the attention of the Ontario authorities and allow them to voluntarily take the necessary corrective action and return all copies of items seized from the Delta Police Department. 3. The Decision to Quash the Ontario Warrant [8] The appellant commenced proceedings in Ontario on October 8, 2003, to challenge the Ontario warrant and the seizure of his property from the Delta police. Despite Catliff J.’s direction, the information that the B.C. proceedings had been misrepresented, and the request from the B.C. Crown that the items seized be returned, the Ontario Crown refused to return the seized items and decided to oppose the application to quash the Ontario warrant. [9] On August 18, 2004, the application judge quashed the search warrant and ordered the O.P.P. to return the seized items. He found that the nature of the B.C. proceedings had been misrepresented, that the non-dissemination agreement had been violated, and that the claim of solicitor-client privilege had not been disclosed. He concluded that without the false and improper information, there was no basis to obtain the search warrant. The application judge found that there had been a serious violation of the appellant’s s. 8 Charter rights. He summarized his findings at para. 92: This is a case where I conclude that the lack of care exhibited and the nature of the omissions, including failing to properly advise of ongoing proceedings before a Superior Court of another jurisdiction, are so subversive of the preauthorization process that the warrant should be quashed. The combination of failing to advise of the outstanding claim of solicitor-client privilege, the inaccurate overall description of the situation in British Columbia including failure to mention the non-dissemination agreement, and the failure to adequately characterize the court proceedings there, lead me to this conclusion. In particular, the failure to respect the judicial process and the important principles of solicitor-client privilege lead me to this result. These are fundamentally important matters that must be carefully guarded and protected. In the context of search and seizure, that protection is provided in large measure by the process of judicial preauthorization. The Information to Obtain the Brampton warrant completely failed to alert the Justice of the Peace to these important matters. I conclude that the need to protect the preauthorization process requires that the warrant be quashed in these unusual, and hopefully rare, circumstances. 4. The Costs Decision [10] The appellant asked for an order of costs against the Crown as a s. 24(1) Charter remedy. In a subsequent decision dated April 18, 2005, the application judge dismissed that request. The application judge recited that he “found that there had been a serious breach of s. 8 of the Charter”, that the Delta officer breached the non-dissemination agreement, and “that the nature of the proceedings in British Columbia were misrepresented in the information to obtain the Brampton warrant.” [11] The application judge stated that if these were civil proceedings “there is little doubt that costs would follow the event” and that the appellant would receive at least partial compensation for the legal costs he had incurred. However, as the proceedings were criminal in nature, he declined to order costs on the ground “that costs will only be awarded where there has been serious misconduct on the part of the Crown”. [12] The application judge ruled that it was important to distinguish the conduct of the Crown from the conduct of the police. He observed that the Charter breach was particularly related to the conduct of the Delta police officer, an individual not under the direction or control of the Ontario Crown. [13] The application judge found that the Ontario Crown was involved at two points in making decisions that resulted in the appellant having to bring proceedings in Ontario to protect his Charter rights: first, when the police were trying to determine the nature and extent of the B.C. proceedings; and second, upon receipt of the letter from the B.C. Crown relating Catliff J.’s concerns and requesting the voluntary return of the information. [14] On the first point, the application judge found that the Ontario Crown had made inquiries to determine the nature and extent of the B.C. proceedings but that the B.C. Crown had not been forthcoming. He concluded that “[a]lthough more could certainly have been done”, there had been “a bona fide effort made such that I am not able to say that there has been a marked departure from what would reasonably be expected of Crown counsel in the circumstances.” [15] The application judge made the following findings, at para. 17, with respect to the letter from the B.C. Crown: In my view the letter of May 26, 2003 from Crown counsel in British Columbia, which is some three pages in length and quite detailed, provides a considerable amount of information. That information together with some further investigation by the Ontario authorities should have led them to conclude that there was a probability the warrant would be quashed. In other words, I disagree with the Crown’s submission that the outcome was as uncertain as suggested in argument. Be that as it may, I have no evidence that the Crown advice to the police was made in bad faith or for any improper purpose. In addition, the Crown’s position, as advanced before me on the application to quash the warrant, was arguable and well argued. I am not able to say that there was a marked departure from the conduct of the Crown that would be expected in the circumstances. While the Crown did have considerable information after receiving the letter of May 26, 2003, and could have investigated to determine more, the Crown did not then have available all of the detailed information that was placed before me on the application to quash the warrant. The Crown also had a legitimate public interest in pursuing evidence for use in an investigation and prosecution in Ontario. [16] The application judge concluded that the serious Charter breaches in this case flowed primarily from the conduct of the police. The Crown was involved at two important points of the process leading to the application to quash the warrant, but the application judge was not persuaded that there was Crown misconduct that would justify an award of costs. Issues 1. Should this appeal be quashed for want of jurisdiction? 2. Did the application judge err in law by applying the “serious Crown misconduct” test to the appellant’s request for costs? Analysis 1. Should this appeal be quashed for want of jurisdiction? [17] The Crown submits that there is no statutory provision conferring a right of appeal in the circumstances of this case. Relying on the well-established principle that this court has jurisdiction only where a right of appeal is specifically conferred by statute, the Crown moves to quash the appeal. [18] In his notice of appeal, the appellant identified two possible statutory sources for an appeal: s. 784 of the Criminal Code and s. 133 of the Courts of Justice Act, R.S.O. 1990, c. C-43. However, in his argument on the motion to quash, the appellant limited his submission s. 784 (1) of the Criminal Code: An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition. [19] The appellant commenced this proceeding by way of a notice of application for certiorari in which the following relief was requested: (i) an order in the nature of certiorari to quash the search warrant; (ii) an order directing the immediate return of the property seized; (iii) a declaration that the appellant’s s. 8 Charter rights were violated “and for such remedies under section 24(1) as may be deemed just”; (iv) “costs, on a solicitor and client basis”; and (v) such further and other relief as may be appropriate The application judge granted (i), (ii) and made the declaration requested in (iii), but refused to order costs. [20] The Crown submits that as the “relief sought in proceedings by way of …certiorari…” was granted, the appellant has no right of appeal. The Crown argues that the denial of the appellant’s request for costs is not embraced by the words “refusing the relief sought in proceedings by way of …certiorari…” and that the request for costs must be seen as a distinct request for a s. 24(1) Charter remedy for which no right of appeal is conferred. [21] The Crown also points to s. 676.1 of the Criminal Code which creates a right of appeal with respect to a costs award, but only in favour of the party who is ordered to pay costs: A party who is ordered to pay costs may, with leave of the court of appeal or a judge of the court of appeal, appeal the order or the amount of costs ordered. [22] Had the application judge awarded costs, s. 676.1 would have given the Crown a right of appeal. The section plainly does not confer a right of appeal where costs are refused. The Crown submits that s. 676.1 constitutes a complete code for appeals of costs orders and excludes the right of appeal claimed by the appellant. [23] The net effect of the Crown’s submission is that the appellant’s only possible avenue for appeal from the order denying him costs as a s. 24(1) Charter remedy would be to apply for leave to appeal to the Supreme Court of Canada pursuant to the Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1). [24] We must respect the principle relied upon by the Crown that this court has no jurisdiction to entertain an appeal that is not authorized by statute. However, that principle does not require us to interpret the appeal rights that Parliament has given in an unduly restrictive or technical manner. It is in the interests of the fair and efficient administration of justice that all appeals relating to the same issue and arising out of the same proceeding be brought before the same court at the same time. The Crown’s submission would lead to this court dealing with an appeal from the grant or refusal of certiorari, but require a separate application for leave to appeal to the Supreme Court of Canada with respect to the grant or refusal of any related relief. We would have to live with that situation if the statutory language compelled us to do so. However, where we are asked to interpret statutory language capable of bearing broader meaning, we should adopt an interpretation that avoids the fragmentation of appeal rights. [25] Section 784(1) confers a right of appeal with respect to “the relief” that is sought “in proceedings for mandamus, certiorari or prohibition.” The right of appeal conferred by s. 784(1) is not restricted to the refusal of an order for mandamus, certiorari or prohibition – Parliament chose to cast the right of appeal in broader terms and included the refusal of “the relief” that is sought in a proceeding for one of those remedies. The appellant chose the proper procedure, certiorari, to challenge the validity of the search warrant. He was entitled to join with his request for certiorari the other heads of relief integrally related to the request for certiorari, namely, the return of his property, a declaration as to his Charter rights, and costs, all of which were inextricably linked to his request for certiorari to quash the search warrant. The request for costs was part of “the relief” sought on the application for certiorari and accordingly is embraced by the language of s. 784(1). [26] The Crown also submitted that we should read s. 676.1 as a complete and exhaustive code as to appeals from costs orders. It is common ground that s. 676.1 was specifically enacted to overcome this court’s decision in R. v. Pawlowski (1993), 79 C.C.C. (3d) 353, holding that the Crown had no right of appeal against a costs order on an application for commission evidence pursuant to s. 709 of the Criminal Code. Parliament’s decision to accord a right of appeal in favour of the Crown where a costs order is made need not limit our ability to give appropriate scope to other rights of appeal. [27] For these reasons, I would dismiss the motion to quash the appeal. 2. Did the application judge err in law by applying the “serious Crown misconduct” test to the appellant’s request for costs? [28] On behalf of the appellant, Mr. Gold does not challenge the application judge’s factual findings, nor, for the purposes of this appeal, does he question the traditional rule that in a criminal proceeding, costs will only be awarded against the Crown where there has been misconduct amounting to a marked departure from the reasonable standards expected of the prosecution. [29] He submits, however, that as the appellant was not the target of the police investigation or charged with any offence, that traditional rule should not apply. The appellant’s position is that where an individual, not charged with an offence and not the target of a police investigation, is forced to go to court to protect his s. 8 Charter right to privacy, costs may be ordered as a remedy if the court considers costs to be, in the words of s. 24(1), “appropriate and just in the circumstances.” [30] I will begin by briefly reviewing the rationale for the traditional “Crown misconduct” rule. I propose then to consider whether s. 24(1) of the Charter alters or qualifies that traditional rule where there is a breach of Charter rights. Finally, I will consider whether a costs award should be made in the circumstances of the present case. The Crown Misconduct Rule for Costs in Criminal Cases [31] As I have noted, for the purposes of this appeal, no issue is taken with the traditional rule, expressed in R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at para. 97 “that whether the criminal defendant is successful or unsuccessful on the merits of the case, he or she is generally not entitled to costs”. It is only where the accused can show “a marked and unacceptable departure from the reasonable standards expected of the prosecution” that a costs order will be made: R. v. 974649 Ontario Inc. (2001), 159 C.C.C. (3d) 321 (S.C.C.) at para. 87. [32] Routine costs awards in favour of the winning party are a feature of civil, not criminal proceedings. Costs awards in civil litigation serve several purposes. Costs in civil cases are awarded on the compensatory principle that it is just to allow the successful civil litigant at least partial indemnity for the costs of the action. Costs sanctions are also an important tool at the disposal of civil courts to control proceedings and to discourage unreasonable or inappropriate behaviour. Especially when fortified with offer to settle rules that penalize unreasonable litigation, the threat of an adverse costs award serves to discourage unnecessary or frivolous litigation and encourages parties to settle their disputes. [33] Different considerations apply to criminal proceedings. Criminal proceedings are brought in the public interest, not by one party to vindicate his or her private interests as against another. As Devlin L.J. explained in Berry v. British Transport, [1962] 1 Q.B. 306 (C.A.) at p. 327: “A plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs. A prosecutor brings proceedings in the public interest, and so should be treated more tenderly.” Costs are not usually deployed in criminal law to influence the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to the accused to defend the case. As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award. As explained by McFadyen J.A. in R. v. Robinson (1999), 142 C.C.C. (3d) 303 (Alta. C.A.) at para. 29: The reasons for limiting costs are that the Crown is not an ordinary litigant, does not win or lose criminal cases, and conducts prosecutions and makes decisions respecting prosecutions in the public interest. In the absence of proof of misconduct, an award of costs against the Crown would be a harsh penalty for Crown officer carrying out such public duties. Costs as a s. 24(1) Charter Remedy [34] I agree with the appellant’s submission that as he established a serious breach of his Charter rights, we must consider whether costs are “appropriate and just in the circumstances” as s. 24(1) remedy. To what extent does s. 24(1) permit or require a departure from the traditional Crown misconduct rule where the individual claiming costs has made out a breach of his or her Charter rights? [35] The traditional aversion to costs in criminal cases is a product of the pre-Charter era. Because of their constitutional status, Charter rights have a higher claim to judicial protection than non-Charter rights and s. 24(1) entitles the victim of a Charter breach to an appropriate remedy. As stated in R. v. Mills, [1986] 1 S.C.R. 863 at 882, the purpose of s. 24(1) is to ensure that Charter rights are “easily available” and not “smothered in procedural delays and difficulties”. Adopting this statement in R. v. 974649 Ontario Inc., supra, at para. 20, McLachlin C.J.C. added: “Anything less would undermine the role of s. 24(1) as a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preserved.” In light of the overriding purpose of s. 24(1) to guarantee effective and appropriate remedies for Charter breaches, I agree with the statement of Galligan J.A., writing for the majority in R. v. Pawlowski, supra, at p. 357, that the “clear effect of s. 24(1) is to enlarge the grounds” upon which the superior court’s inherent jurisdiction to award costs against the Crown may be exercised “to include a Charter infringement, along with misconduct by the prosecution”. [36] On the other hand, the authorities are clear that this does not mean that costs will be routinely ordered in favour of accused persons who establish Charter violations. Galligan J.A. cautioned in R. v. Pawlowski that costs awards in favour of an accused will be “rare”. As a general rule, when claimed by an accused, absent Crown misconduct, costs will not be an “appropriate and just” Charter remedy: see R. v. 974649 Ontario Inc., supra, at para. 87; R. v. Leduc (2003), 176 C.C.C. (3d) 321 (Ont. C.A.) at para 161; R. v. Robinson, supra. In R. v. Hallstone Products Ltd., [2000] O.J. No. 1051 (S.C.J.) at para. 33, LaForme J. suggested that the expanded jurisdiction to award costs against the Crown as a s. 24(1) remedy for a Charter breach in cases not involving Crown misconduct requires something that is “rare” or “unique” that “must at least result in something akin to an extreme hardship on the defendant.” [37] However, the cases to which we have been referred do not consider costs as a Charter remedy when claimed by someone other than the accused. On that point, this appears to be a case of first impression. Does the fact that the party claiming costs as a Charter remedy was not the accused, together with any other unusual features of the case, render the traditional rationale for requiring serious Crown misconduct as a prerequisite for a costs award inapplicable? Application of s. 24(1) to the Circumstances of this Case [38] In my view, there are a number of features of this case that distinguish it from the usual situation where costs are not available absent Crown misconduct. [39] That the appellant was not the target of the investigation nor charged with any offence distinguishes this case from the cases that deal with the Crown misconduct rule in relation to an accused. The appellant’s status as a bystander to the prosecution, rather than as the accused, materially alters the appropriate balance of interests between the need to protect Charter rights on the one hand and the need to afford free range to the prosecution on the other. For the following reasons, I conclude that the rationale for limiting costs awards in favour of accused persons to cases of Crown misconduct does not apply with the same force to the bystander. [40] First, there is a significant access to justice issue. This area of law is complex and, as this case demonstrates, litigating a s. 8 issue can be very expensive. The bystander will have considerably less motivation than the criminal accused to defend his or her Charter-protected privacy rights. The cost of mounting a Charter challenge will discourage the bystander from proceeding. Access to legal aid is unlikely. Charter rights should not come at an excessive price. The legal regime should encourage, not discourage, the ordinary citizen to stand up for his or her Charter rights. If the bystander does proceed and is successful, he or she will perceive an element of injustice if saddled with the full cost of securing the Charter-protected right. In my view, the compensatory principle that it is just to allow a successful litigant at least partial indemnity for the costs of litigation holds greater sway when the successful litigant is not the accused but a bystander to the criminal prosecution. [41] Second, the situation of a bystander whose Charter rights are threatened or infringed is different than that of a criminal accused when it comes to the procedures and remedies available to protect his or her Charter rights. The rules of the criminal process afford the accused procedural protections not available to the bystander. The risk of exclusion of evidence pursuant to s. 24(2) serves to dissuade the prosecution from actions that violate the accused’s Charter rights. The bystander is more vulnerable. The bystander’s Charter rights will not come under scrutiny in the ordinary course of the prosecution. There are few, if any, disincentives on the authorities to discourage conduct that violates the bystander’s Charter rights. As a general rule, they cannot be asserted by the accused and their violation will have little or no impact on the presentation of the case against the accused at trial: see R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.) at para. 55. In my view, the vulnerability of the bystander considerably weakens the case for leaving the Crown’s discretion unfettered by the threat of an adverse costs award and considerably strengthens the case for awarding costs to ensure, in the spirit of s. 24(1), that there is a meaningful Charter remedy. [42] Third, the argument that Crown discretion should be unfettered by the threat of a costs order does not apply with the same force in the case of the bystander. Given the lack of other controls, there is less to fear from orders that would encourage the Crown to pay greater heed to bystanders’ Charter rights. The bystander is a member of the very public the prosecution is duty-bound to protect. The cost of securing the Charter rights of an individual not suspected of criminal activity and not charged with an offence should not be automatically or routinely sacrificed in the cause of the general public interest. There is an analogy here with cases where the Crown appeals to settle a point of law and is required to pay the respondent’s costs “because it is the public-at-large who are the beneficiaries of such a step and it is not considered just that one individual should be put to substantial expense when it is the Crown that seeks to effect a valid social purpose by taking the appeal”: Trask v. The Queen (1987), 37 C.C.C. (3d) 92 (S.C.C.) at p. 95. While this dictum related to a narrow range of Crown appeals, Prof. Kent Roach identifies it as “a much broader rationale for granting costs…when a case is brought for the benefit of the public at large and when it is not just that the applicant should be put to a substantial expense”: Constitutional Remedies, looseleaf (Aurora: Canada Law Book, updated 2005) at para 11.920. [43] Finally, I come to the unusual circumstances of this case. First, the O.P.P. warrant authorized the seizure of items that were in the possession of the Delta police under the B.C. warrant. Second, the items were the subject of judicial proceedings in British Columbia to determine what items could be legally kept under the B.C. warrant. Third, in those proceedings, the B.C. Supreme Court ordered the items returned to the appellant. After achieving substantial if not total success in the British Columbia Supreme Court, the appellant was required to engage in further costly litigation in Ontario to protect his Charter rights. It strikes me as highly unusual and highly burdensome that the appellant should be required to litigate his claim twice, before two different courts. [44] A related unusual feature of the case is that the Ontario Crown was put on notice by the B.C. judge that there were problems with the O.P.P warrant. The application judge declined to make a finding of Crown misconduct or bad faith, but he also found that on the known and ascertainable facts, the Ontario Crown should have concluded that the search warrant would likely be quashed. The letter from the B.C. Crown, written at Catliff J.’s direction, expressed the concerns of the judge seized with the B.C. proceedings that the O.P.P. warrant had been obtained on the basis of misrepresentation and nondisclosure regarding the B.C. proceedings. The application judge found that upon receipt of this letter, the Ontario Crown could have done more: “That information together with some further investigation by the Ontario authorities should have led them to conclude that there was a probability the warrant would be quashed.” The Crown seeks to undermine that finding on appeal, but in my view it is entitled to the same deference as the application judge’s finding that there was no misconduct on the part of the Crown. [45] The Crown took what in my view could appropriately be described as a “hardball” attitude towards the appellant and his Charter rights. I recognize that the source of the problem was the cavalier and reckless behaviour of the B.C. officer who was not subject to the control of the Ontario Crown. However, despite a clear warning that there were serious problems with the information provided by the B.C. officer, the Ontario Crown decided to tough it out. The Crown’s conduct in the Ontario proceedings has been found to fall short of misconduct sufficient to warrant a costs award on the traditional criminal law test, and I do not say that costs would be appropriate if the appellant’s claim rested solely on the manner in which the Crown conducted this case. However, the decision of the Crown staunchly to resist the application to quash the warrant in the face of the clear warning from the B.C. Crown that the information was tainted provides an additional factor which, together with the other circumstances discussed above, makes it “appropriate and just” to require the Crown to indemnify the appellant for a reasonable portion of the costs he incurred to secure his Charter rights. Quantum [46] The appellant submitted a bill of costs in the amount of $73,666.71, inclusive of disbursements and G.S.T., up to the date of the argument for costs and an additional $14,550.19 thereafter. It was conceded, however, that due to his limited means, the appellant had only actually paid $26,450 and that there was a further $1,600 outstanding. In my view, an appropriate award of costs in favour of the appellant would be $20,000. Conclusion [47] For these reasons, I would allow the appeal and order that the Crown pay the appellant costs in the amount of $20,000. “Robert J. Sharpe J.A.” “I agree R.G. Juriansz J.A.” “I agree D. Lane J. (ad hoc)” RELEASED: August 29, 2006