The Crown should reimburse the costs borne by both accused people and their counsel in prosecutions that end in acquittals, stays of proceedings, and withdrawals. The longstanding judicial resistance to awarding costs against the Crown should be abandoned. The award of costs should not be based on a finding of improper conduct on the part of the Crown, nor should a Charter breach be a prerequisite.

This may be a controversial position, but I believe it’s one that can be supported by common-sense notions of fairness and efficiency.

The Current State of the Law

I won’t spend too much time on the current state of the law. Suffice to say that, generally, an accused person is not entitled to receive any costs whatsoever, let alone an amount that adequately compensates them for lost wages and expenses incurred during an unsuccessful prosecution.

The different treatment that costs receive in criminal versus civil litigation is often explained as a consequence of the differing natures of the two kinds of proceedings. Civil litigation is a dispute between two private parties, while the criminal law is viewed as a way for the public to protect its interests. (I’ll have more to say about the nature of “public interest” in a moment.)

In rare cases, defendants are entitled to some recompense. Charter breaches, systemic failures leading to extraordinary expenses incurred by the accused, and prosecutorial misconduct can sometimes lead to an award of costs.

I suggest that these awards suffer from a few fatal flaws.

  • They’re extraordinarily rare – Cost awards are so rare that they can’t possibly have any meaningful effect on the judicial process. They’re a drop in the prosecutorial bucket.
  • They must be litigated – For costs to be obtained, an accused must successfully litigate an application. This adds to the already excessive complexity of a Canadian criminal prosecution.
  • They rarely encompass all of an accused’s, or their counsel’s, costs – Awards are typically small and represent only a fraction of the true costs of a successful criminal defence.

What Pay-to-Play Prosecutions Would Look Like

I suggest that the Crown should bear the cost of each charge that it lays against an accused that ends in a stay of proceedings, withdrawal, or acquittal. (The accused should not be compensated for convictions that are Kienappled.)

Costs should be automatic after a prosecution has concluded and no litigation should be required or allowed. Successful prosecutions, even those ending in an absolute discharge, should remain the financial burden of the defense. All unsuccessful prosecutions, regardless of the reason for the lack of success, should become the financial responsibility of the Crown.

Prosecutions resulting in a conviction on a lesser included offence should be treated as an unsuccessful prosecution for that charge.

Costs should be awarded on a tariff basis with predetermined amounts that would depend on:

  • The seriousness of the charge.
  • The number of days the accused spent in custody or in court.
  • The number of days the charge remained extant.

Costs should also be awarded to the successful defendant’s counsel at the Legal Aid tariff rate. Amounts over and above that rate would remain the responsibility of the accused.

The Public Interest Is Not Monolithic

Before I move on to the advantages of the pay-to-play approach, I’ll make a brief comment about the public interest.

The courts have sought to distinguish criminal prosecutions as matters involving the public interest on one hand, and the accused’s interest on the other.

But the public interest is a nebulous thing. People of different ethnicities, genders, ages, sexualities, and virtually every other meaningful distinction experience the justice system in extraordinarily different ways. Perhaps the most striking difference felt by Canadians is the one that separates Indigenous and non-Indigenous Canadians as identified by the courts in Gladue and Ipeelee.

The notion that the Crown acts in a manner synonymous with the public interest at all times is questionable, at best. I was a Crown for over six years. I did my best to act in the public interest. I don’t think I achieved that goal. Frankly, I don’t believe that even a much better Crown would have met that benchmark.

I think it’s likely that the Crown does not bring prosecutions in the public interest because the public interest is not a coherent concept. Even when circumscribed by Crown policies and judicial decisions regarding the appropriate limits of Crown discretion, the notion of public interest does not adequately guide prosecutorial decision making.

To use the public interest to distinguish between criminal and civil trials is to use an illusory construct to exaggerate the difference between two types of proceedings.

The Advantages of Pay-to-Play Prosecutions

There would be myriad benefits of pay-to-play prosecutions. At the heart of the issue, though, is the concept of externalities. Students of economics will remember that an externality is a cost or a benefit incurred by a third party who has not chosen to incur that cost or benefit.

In criminal justice, huge costs associated with criminal prosecutions are externalized. A pay-to-play model like the one I’ve described above would simply require the Crown to account for the burdens it imposes on its citizens.

Simplicity

Pay-to-play prioritizes simplicity and predictability. No additional litigation would be necessary. Indeed, some litigation could be eliminated.

Prosecutorial Restraint

I suspect that no reasonable participant in the justice system would make the claim that each and every charge laid by the police and proceeded with by the Crown is more likely than not to result in a conviction. The truth is that most charges laid are stayed or withdrawn by the Crown or result in an acquittal at trial. Of the charges that result in convictions, many are for lesser included offences.

This reality, on its face, suggests significant overcharging by the police and overzealous prosecution by Crowns.

A system in which police and Crowns were required to carefully consider the likely outcome of a case before charges were laid would act as a powerful brake on the natural tendency of police and prosecutors to charge everything they can think of.

Plea Bargaining and Court Time Would Be Laser-Focused

By trimming away all of the fat usually found in charging documents, plea negotiations and trials would be greatly simplified.

Access to Justice Would Be Improved

People who didn’t qualify for Legal Aid could find counsel willing to take on their cases on what would effectively be a contingency basis.

Simplified Proceedings

The Crown would have a strong incentive to proceed summarily on the charges it chose to go ahead with, if only to avoid the additional cost awards resulting from additional and lengthened proceedings.

Final Thoughts

I imagine a pay-to-play system of prosecutions not as one that punishes the Crown, and in turn the public, for having the audacity to bring a prosecution that didn’t work out. I imagine it as one that puts the true cost of a prosecution front-and-center in the mind of the Crown Attorney and those who hold the purse strings. It is a scheme that could focus the efforts of our strained justice system and help to alleviate some of the pressure that threatens to blow out the seams of an overstretched court and Bar.

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