Report on Law Reform Commission Study Paper #9
The B.C. Civil Liberties Association has read with interest Working Paper No. 9 of the Law Reform Commission concerning costs of an accused on acquittal. The working paper contains a valuable analysis of the existing law and the need for reform. The proposals in the working paper are clearly an improvement; indeed almost any change would be for the better. However, we believe that the scope of the study should be broadened and that more comprehensive change is needed. Specifically, we recommend that legislation be enacted which provides that in all cases other than prosecutions by private persons, the costs of all accused shall be borne by the Crown whether the accused is convicted or acquitted. Private prosecutions should be governed by rules similar to our alternative recommendation, set out below.
Granting costs to an accused in all cases would eliminate several of the problems discussed in the working paper. No one would have to make any determination as to whether costs should be awarded. An accused who was acquitted m a technicality would not feel that he was being compensated for “beating the system” since he would not have been responsible for the costs in any event. Also, this recommendation avoids the hardship caused if an accused is required to post a retainer pending the outcome of the case.
A possible criticism of this scheme is that a guilty accused deserves to pay costs and that eliminating the costs of defence would lessen the deterrence to crime. However, it seems more sensible to take these factors into account when determining the penalty; costs, which may have little relationship to the seriousness of the offence and none to the personal characteristics of the accused, should not be used as a deterrent. Moreover, the expenses of defence will often fall upon the accused’s family rather than the accused himself.
A second possible criticism is that such a scheme would provide no deterrent to improper investigation or prosecution of an offence. We doubt that the occasional imposition of costs would do much to deter such conduct. In any event, our recommendation is consistent with proposal (o) in the working paper which shifts the burden onto a local department, agency etc. in appropriate cases.
It can be argued that this scheme would be unduly expensive, and certainly some provision would have to be made to prevent an accused from recovering large sums as a result of defending, for example, a charge involving a minor traffic offence. If such sensible limitations were included, it is not clear to us that the expense would be undue. We would suggest that this question be studied further.
We believe that the above recommendation provides the best solution to the problems discussed in the working paper. However, if that scheme were not acceptable to the Commission, we would propose the following alternative: Proposals (e) and (m) of the working paper should be modified to provide that an accused is entitled to costs if the tribunal is affirmatively persuaded of his innocence or if the case is terminated prior to the verdict and the tribunal finds that it would not have been reasonable to commence the prosecution if all of the facts had been known at the time it was commenced. There should be discretion to deny costs to an accused if. he has unreasonably contributed to the commencement or continuation of the prosecution. (See sec. 3(1)(b) of the New South Wales Act.) In the absence of such conduct., costs should be awarded as a matter of right if the other criteria are met.
The criteria proposed in the working paper for the awarding of costs closely parallel those contained in the New Zealand statute. (Compare proposal (e) with sec. 5(2) of the New Zealand Act, appendix B.) We note that in applying these criteria., the New Zealand courts have awarded costs in only a handful of cases. The practice in the United Kingdom also has been to award costs in exceptional cases, and the practice in both countries appears to he based on the assumption that costs should generally not be awarded unless the prosecution has been at fault. We believe that the primary goal should be to compensate the innocent accused and that costs should be awarded even if the prosecution has acted reasonably. The statistics on pages 56-57 of the working paper suggest that as presently drafted, the proposals would have almost no practical effect. The policy considerations cited in Chapter VII provide ample support for a more comprehensive scheme.
We recognize that our alternative recommendation requires the tribunal to make a determination not presently required,. i.e. whether it affirmatively finds the accused to be innocent. However,. this determination would be made by a judge, not a jury. In most cases it would be based upon the same evidence used in determining the question of guilt or innocence; in effect the judge would merely be applying a different standard of proof to the same facts. In these circumstances, it seems unlikely that the determination would require extensive additional argument or consideration.
With respect to proposal (k) dealing with the publication of information concerning the costs awarded, we recommend that any legislation give the trial judge discretion to prohibit the publication of such information. At present, we have no experience concerning this question. If a discretionary power were included in the legislation, the practice of the judges could be modified as the effect of such publication clearer.
Finally, we note that the working paper did not discuss the payment of costs by an accused. However, the United Kingdom and New Zealand legislation permits such an award, and we wish to state our opposition to the enactment of any such provision in British Columbia.