Menu

Costs to accused on acquittal

Introduction

Although the primary function of our criminal justice system is to protect society from dangerous conduct, the system also has built-in safeguards to protect the rights of the innocent at various stages in the criminal process. One such safeguard is the principle of presumption of innocence: the accused in presumed innocent until found guilty as a result of due process of law. However, it would appear that although the innocent accused is protected until acquittal, his rights upon acquittal have been neglected. With the ever-increasing length and consequent costs of a trial, the innocent defendant is often left in an impoverished financial state upon acquittal. The prime sufferer is the middle class defendant who is too “rich” for Legal Aid, but too “poor” to afford a legal bill of thousands of dollars.

Recognizing the possible injustices of this-situation, several countries have enacted Costs in Criminal Cases Acts to deal with the issue of costs awards on disposition of a criminal case. England first passed such an Act in 1908, and the issue is presently governed by the 1973 Costs in Criminal Cases Act. Following the recommendations of a 1966 report by its Law Revision Committee, New Zealand passed a similar act in 1967. The New South Wales legislature enacted its statute in 1967 as well. Tasmania soon followed with a 1971 Law Reform Committee Report, and a Costs in Criminal Cases Act passed in 1976.

Although the problem has been addressed in Canada, a remedy has not been forthcoming. In October of 1972, Professor Burns of the UBC Law Faculty completed a research paper for the Law Reform Commission of Canada on the issue of costs awards. The Commission rejected his recommendations, but advocated an alternative system in their report of August 1973. The B.C. Law Reform Commission adopted many of the Burns recommendations, both in their Working Paper issued in May 1973 and in their Final Report of 1974. But to date, neither the B.C. nor Federal Governments have enacted costs in criminal cases legislation, and the reports appear to have languished on the shelves.

However, in light of the latest cutbacks in Legal Aid, the prevailing recessionary climate, and recent cases—for example, the 1982 Susan Nelles case—of financial hardship incurred by those who are required to defend their innocence, the B.C. Civil Liberties Association is of the opinion that the issue can no longer be ignored.

In a brief in response to the B.C. Law Reform Commission’s 1973 Working Paper, our Association recommended the enactment of legislation which would provide that in all cases other than prosecutions by private persons, the costs of all accused, whether convicted or acquitted, would be borne by the Crown(l). This alternative was also discussed by the Canada Law Reform Commission, as follows:

…a compelling argument can be made that no accused should, in addition to being charged with a crime and subject to the possibility of conviction, suffer the various economic losses that are incurred in defending that criminal allegation or in waiting for a plea of guilty to be entered…. However the fact that such losses and costs are suffered is surely only a consequence of the criminal process, not its object, and an ideal system would be one where they were not incurred at all. Thus… one might even argue that every accused person, whether subsequently convicted or acquitted, should be compensated for all costs reasonably incurred from the commencement of criminal proceedings to their conclusion…. (2)

Although we stand by our earlier recommendation of costs to all accused, we wish to address in this paper the specific issue of costs to the defendant who is either acquitted or discharged, or against whom the charges are dropped. In so doing, this paper proposes to: examine the current situation in B.C.; analyze alternative approaches to the costs issue; and, to recommend the adoption of the approach the Association believes to be the most consistent with the democratic principle of presumption of innocence.

Current law and practice in British Columbia

At common law the courts did not have jurisdiction to award costs to either party in judicial proceedings, whether civil or criminal. Over the years, however, the Courts were given statutory authority to award costs in civil litigation, first to a successful plaintiff and eventually to a successful defendant. But in criminal cases the general principle was that the King neither paid nor received costs unless specifically authorized by statute. This common law rule was set out in Blackstone’s Commentaries:

The King (or any person suing to his use) shall neither pay nor receive costs; for besides that he is not included under the general words of the statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive him (3).

In British Columbia this rule prevailed until recently because it was enshrined in the Crown Costs Act, originally passed in 1910. Section 2 of the Act provided that the Crown would not “pay or receive any costs in any cause, matter, or proceedings, except under the provisions of a statute which expressly authorizes such an order (4). However, in 1974, the Crown Costs Act was repealed by the Crown Proceeding Act (5). Furthermore, according to s.ll(l) of the Crown Proceeding Act, The court is authorized to make an order as to costs in proceedings against the Crown or in which the Crown is a party (6).

However, the B.C. Law Reform Commission was of the opinion that as a result of the repeal of the Crown Cost Act and the subsequent enactment of the Crown Proceeding Act, there is some doubt as to whether costs arising out of Provincial offences are to be governed by s. 11(1) or by the common law. If the latter, the Commission took the view that the liberal trend established in the reported cases prior to the Crown Costs Actwould be adopted by the courts and that costs would be awarded against the Crown (7). However, this apparent uncertainty may be somewhat irrelevant as the Commission concluded that either way, the right to award costs to the acquitted accused is governed by the more specific provisions of the Offence Act (8). This Act expressly provides for an award of costs in the case of a trial (s.70); appeals (s.99 and s.102); a stated case to the Supreme Court (s.lll(e)); or an appeal to the Court of Appeal on a question of law (s.114). For the purposes of costs to the accused on acquittal, the most important provisions are s.70 and s.71, which read as follows:

s.70(1)—The justice may in his discretion award and order costs he considers reasonable and not inconsistent with the fees established by section 71 to be paid

  1. to the informant by the defendant, where the justice convicts or makes an order against the defendant; or
  2. to the defendant by the informant, where the justice dismisses an information.(2) An order under subsection (1) shall be set out in the conviction, order, or order of dismissal, as the case may be.

    (3) Under this Act, costs awarded and ordered to be paid by a person under this section are deemed to be all or part, as the case may be, of a fine imposed against him.

    s.71—The fees and allowances mentioned in the tariff to this Act and no others are the fees and allowances that may be taken or allowed in proceedings before justices under this Act.

Although at first glance, s.70 appears to grant the trial court wide powers in the matter of costs the B.C. Law Reform Commission pointed out various limitations to these powers (9). Firstly, the awards are to be made to or against an “informant”, which is defined in s.l of the Offence Act as “the person who lays an information or a peace officer who signs a violation report. The Commission noted that “in the ordinary course of events an information will be laid by a public official, normally a police offices….”(l0). Thus, the Act in effect only allows for recovery against individual public officials, rather than as against the Crown or prosecutors acting as Crown agents. And as will be discussed below, courts have exhibited a reluctance to award costs against individual police Officers except in clear cases of negligence or bad faith.

A second problem associated with s.70 is that the amount recoverable appears to be limited to the fees and allowances established by the tariff to the Act, and no others (s.71). The Current tariff consists of six items: items 2 to 6 referring to fees and allowances to witnesses and interpreters. Thus would appear that the only fee recoverable is a five-dollar charge for the arrest warrant. This was the conclusion reached by the Hyde Report. The B.C. Law Reform Commission argued that it may be possible to draw a distinction between “costs” and “fees and allowances”, and therefore the tariff would function as a guide to the amount of costs, but would not limit them (12). However, the Commission concluded that “such a view… clearly conflicts with the decision of the Supreme Court of Canada in Attorney General for (Quebec v. Attorney General for Canada and probably would not prevail in British Columbia Court” (13).

A third problem is that s.70(3) deems a costs payment to be part of a fine where such is adjudged, so the remedies available on non-payment of costs are the same as those for fines. Theoretically, this would mean that a convicted defendant could be imprisoned for non-payment of costs, as for default on the payment of a fine. The implications, and undesirability of such imprisonment are discussed in greater detail in a later section.

Given the limitations of s.70 and s.71 the B.C. Law Reform Commission concluded that for all practical purposes, these sections wee “no more than meaningless statements of principle”(l4). They further concluded that the existing provisions relating to the award of costs in Provincial Offences (i.e. the Crown Proceeding Act and the Offences Act) are also defective (15). It is for these reasons that the Commission recommended that a comprehensive statute be enacted that would cover costs awards in Provincial criminal and quasi-criminal proceedings. The B.C. Civil Liberties Association agrees that such a statute should be enacted.

Should costs be awarded at all?

Although in Canada costs are generally awarded to the successful party in civil litigation, several arguments have been advanced to support the position that cost awards should not be made in criminal cases. The reluctance to award costs in criminal law stems in part from the common law rule that the Crown, which conducts the vast majority of criminal prosecutions, neither receives nor pays costs. More significantly, there appears to be some sentiment that to award costs would be to go too far: that the fact of acquittal is sufficient reward in itself. For example, the New Zealand Law Revision Committee noted that one view of the issue of costs awards is that:

…exposure to the risk of a prosecution is one of the inevitable hazards of living in a society and that there is no reason to shield the citizen against the financial con-sequences as long as no malice, incompetence or serious neglect can be attributed to the prosecutor (16).

More specific objections to costs awards in criminal cases focus on floodgates of litigation and administrative efficiency concerns. One County Court judge feared that: “Judges will be plagued by Applications for payment of costs as nearly everyone who has successfully defended a criminal charge will have some reason for thinking that he should be reimbursed”(l7). Another judge took the view that:

…awarding of costs to either party in a criminal proceeding… might delay justice and be fairly costly as regarding administration. In most cases of a criminal nature where there is a trial, there are sufficient complications without bringing in the question of costs(l8).

However, in response to these concerns the B.C. Law Reform Commission stated that fears that introduction of a new legal remedy will deluge the courts with applications usually turn out to be unfounded and that administrative efficiency should not necessarily be the overriding priority of any system of justice(l9).

Another common objection to cost awards to successful defendants is that it may discourage the police from prosecuting in all but the dearest of cases. The argument is that the police might become unduly cautious in bringing criminal charges in cases where they are justified or they may be tempted to employ improper means to secure a conviction (20). However, this objection can be overcome by awarding costs to the accused rather than against the police or Crown, thereby removing any suggestion of a rebuke to the police and/or prosecutor. Furthermore, the awards can be taken from a fund set up by either he municipality or the Provincial Government, rather than from the Police Department. The English, Mew Zealand, and New South Wales schemes each provide for costs to be paid out of a separate fund administered elsewhere than in the Police Department (21).

Still others argue that costs awards are not necessary because of the availability of Legal Aid. All provinces in Canada now have criminal Legal Aid schemes and many of them have signed federal-provincial agreements for federal financial assistance for their Legal Aid programs. However, the purpose of Legal Aid is to ensure that no one charged with an offence will be denied legal representation, and the schemes therefore provide legal counsel when the accused is unable to afford a lawyer. On the other hand, the purpose of a cost award scheme is to provide compensation for economic expenses and losses in addition to lawyer’s fees. Therefore, to deny costs on the basis of availability of Legal Aid would be to fail to provide compensation for the various other costs that are usually incurred in the defence of a criminal prosecution. Furthermore, it would discriminate against those not entitled to Legal Aid. But more importantly, Legal Aid schemes impose financial limits on eligibility as well as on subject matter. Sharp notes that: “The typical sufferer under the present law is the innocent middle-upper income bracket defendant who just fails to qualify for Legal Aid and to whom the cost of a necessary defence represents a severe financial blow” (22). This has led many to conclude, as did the New Zealand Law Revision Committee, that “it is unjust for an innocent man to have to suffer financial hardship, perhaps serious hardship, in establishing his innocence”(23). Prof. Edmond Cahn summarized the case for costs awards to the acquitted defendant as follows:

A fair-minded society will not only provide and pay independent counsel to defend all indigent persons who are arrested on serious charges: it will also pay the necessary and reasonable defence costs of all accused persons, whatever their economic condition, who are eventually found to be guilty. As matters now stand in the United States and amongst other democratic countries, the state, by recognizing no duty of reimbursement after acquittal, can compel an innocent man to choose between unjust conviction and personal bankruptcy (24).

Another commonly voiced objection to a cost awards scheme is the availability of civil remedies for false arrest, false imprisonment, and malicious prosecution. However, these courses of action are hedged with so many safeguards that it is only in rare cases that the acquitted defendant can succeed in recovering damages. For example, in the case of malicious prosecution, the innocent accused must prove malice on the part of the person laying the charge, and that the person did not have reasonable and probable grounds to believe that the accused committed the offence with which he or she was charged. As Sharp states: “Any tort lawyer will know…that the severe burden of proof placed upon the plaintiff in such proceedings makes this at best a far from certain remedy, and at worst a further snare and delusion to the innocent”(25). Several other authorities have concluded that these civil actions are inadequate remedies and cannot substitute for compensating costs for the acquitted defendant(26). Furthermore, as the New Zealand Law Revision Committee stated:

…there are and will always be cases where innocent men are prosecuted without any fault being necessarily laid at the door of the police. It does not seem to us to follow that in these circumstances the citizen must also be expected to bear the financial burden of exculpating himself. Because we cannot wholly prevent placing innocent persons in jeopardy does not mean that we should not as far as practical mitigate the consequences (27).

The argument for awarding costs to the acquitted defendant is based primarily on the concept of compensation whereby the individual is reimbursed for costs incurred in meeting the case against him or her. This is analogous to the practice in civil litigation of awarding costs to the successful party. Alternatively, cost awards to the acquitted can be viewed as similar to the compensatory damage policy underlying the law of torts that “the ideal of justice is to make the wronged party whole, at least so far as nay be done by money” (28). Foster persuasively presents the case for costs awards as follows:

Although an accused acquitted of all charges against him is spared criminal penalization and the concomitant stigma of conviction, he sustains manifest loss through his involuntary participation in the criminal justice system … In addition (to bearing the costs of his defence), the accused may be subjected to the costs of making bond and loss of wages during trial, as well as the humiliation of arrest and detention and the frustration, apprehension and stigma innate in defending against a criminal prosecution, irrespective of its ultimate outcome. The acquitted person is left in the midst of this plight with only the wholly inadequate remedy of a possibility of an action in tort for malicious prosecution. Certainly these factors denote the need for providing at least a partial remedy to the accused person upon his acquittal in the form of recoupment of his costs in successfully defending against the state (29).

Regardless of which underlying rational is adopted, the effect of the award would be to reimburse the innocent defendant for economic losses suffered (and in some cases actually restore the defendant to financial solvency) and to minimize the stigma of the accusation. Furthermore, an award of costs may serve a punitive and deterrent function in that it may discourage frivolous actions and punish a party who brings them. This is of particular significance in private prosecutions but it may also encourage proper investigative and prosecution techniques on the part of the Crown.

In conclusion, although it may be accepted that the compensation rationale should be given some scope in criminal cases, the difficult issue arises of which acquitted defendants should receive costs. Should costs be awarded automatically to defendants upon acquittal, or only top those defendants who are truly innocent? Or only to those who need it? Should the decision be left to the discretion of the court or should guidelines be stated in a statute? If compensation is the primary rationale, should costs be awarded to the Crown if the defendant is acquitted?

Alternative No. 1: Unfettered judicial discretion

One alternative solution to the problem of which acquitted defendants should receive costs is to provide the court with discretion to award costs. This is the approach taken in England and Northern Ireland under their respective Costs in Criminal Cases Acts. In both Acts the discretion of the presiding Judge or Magistrate is total. No guidelines are set out indicating when cost awards are appropriate beyond the requirement that the award be of “such sums as appear to the court reasonably sufficient to compensate the accused for the expenses properly incurred by him in carrying on the defence”(30). The Hyde Report, prepared in 1968 by the Criminal Justice subsection of the Canadian Bar Association and adopted that year by the B.C. branch, also recommended that legislation be passed providing courts with the power to award costs in their discretion (31).

The main advantages of unfettered judicial discretion is that conduces flexibility and allows the judge to consider the merits f each individual case. This may be particularly appropriate because the judge may be faced with a variety of factors that arise during the course of a trial involving examination of evidence, credibility of parties and witnesses, and the general tenor of the case. Discretion also allows the judge to take into consideration the fact that the defendant’s acquittal may have resulted from an unmeritorious technical point or a procedural error on the part of the prosecutor, rather than a positive affirmation of the innocence of the accused. Furthermore, the acquitted defendant nay have been partly responsible for bringing the prosecution on him or herself, for example, by refusing to cooperate in the investigation stage or remaining silent in the fact of accusations made against him or her. Finally, as Samuels points out, since cost awards are not necessarily awarded as a general practice, a refusal of costs does not cast an aspersion of guilt upon the acquitted defendant (32).

However, the disadvantages of unfettered judicial discretion may outweigh the advantages. Perhaps the major criticism of such an approach is that it leads to inconsistency of decisions. Burrows notes that:

…discretion may indeed be “different in different men” and if a discretion is conferred there is always a danger that inconsistent decisions will result…. Such inconsistency is highly undesirable. It leads to complaints of inequality among citizens…. It leads also to the accusation that the citizen is governed by men and not laws, and that everything depends in which judge one gets; such a belief does not increase the citizen’s respect for the system(33).

Furthermore, inconsistent decisions may lead to uncertainty as to how the court will rule in any given case, thus making it difficult for the lawyer to advise the client with any degree of confidence. In the face of such uncertainty, the accused may plead guilty because he cannot afford to run the risk of paying substantial costs in the event that costs are not awarded. Thirdly, although an acquitted defendant who does not receive costs may challenge the decision in an appeal court, an appellate court is usually reluctant to upset the exercise of discretion in a lower court. As Burrows notes: “It is not enough merely that the appellate judges would themselves have exercised the original discretion in a different way” (34).

The unfettered judicial discretion system of cost swards has also been criticized because it stigmatizes the acquitted person and casts an aspersion upon the jury’s verdict of acquittal. The argument is that by not awarding costs to the acquitted defendant he or she is considered to be “less innocent” that an acquitted defendant who does receive costs. According to Samuels, “counsel will sometimes quite deliberately not ask for costs in order not to risk the stigma of refusal…”(35). However, one of the touchstones of our judicial system is that each individual is presumed innocent until proven guilty. Where an accused person is acquitted, that presumption has not been rebutted, and to imply degrees of innocence based on whether or not costs are awarded is to flout this principle of presumption of innocence. Furthermore, when a jury acquits an accused, it may do so for any number of reasons ranging from concluding that the prosecution failed to prove its case, through reasonable doubt, to a belief that the defendant positively proved his innocence. However, when the judge decides not to award costs upon acquittal, he or she is making a fresh assessment of the facts or of the accuracy of the jury’s verdict. Hargrove argues that this is a “naked usurpation of the function of the jury” and forces the defendant to riot only prove to the jury that he or she is not guilty but to also prove his innocence to the judge (36).

The English Costs in Criminal Cases Act has also been criticized because in the exercise of its discretion to award costs the tendency of the courts has been not to indemnify the successful defendant for his costs. Although the courts were given statutory authority to order the prosecution to pay the defence costs in certain limited circumstances in the Costs in Criminal Cases Act of 1901, it was not until the passage of the Criminal Justice Act, 1948, that the defendant could have his costs paid out of central fund. The provisions of the 1948 Act, which were later incorporated into the Costs in Criminal Cases Act of 1952, were made the subject of a Home Office Circular and a Practice Direction by Lord Goddard, C.J., in the Court of Criminal Appeal (37). The gist of both the circular and the direction was that the power to award costs to an acquitted defendant should be exercised only in exceptional cases, and that each case should be decided on its merits.

The law with respect to the payment of costs in criminal cases in England was consolidated by the Costs in Criminal Cases Act, 1952. More detailed provisions as to the award of costs both to and against the accused were enacted, and the wide discretion of the Court was reaffirmed. Notwithstanding this, subsequent judicial decisions on costs following acquittal indicated that the courts were not prepared to exercise their discretion with any degree of liberality (38). Malcolm states that the court’s conservatism could be attributed largely to the uncompromising tone of Lord Goddard’s earlier statement(39). However, because of the attention drawn by the press to the Selby and Firman, R.V. Rhodes, and Jones cases, and rising public concern, a further practice statement was issued by Lord Parker, the newly appointed Lord Chief Justice, in 1959. After referring to Lord Goddard’s earlier direction and discussing two opposing views that:(a) defence costs should be awarded only where the prosecution was in some way at fault, and (b) costs to the defence should be automatically granted on acquittal, he went on to conclude that:

Where either of these views correct, the effect would be to impose a fetter upon the exercise of the absolute discretion conferred by the statute. As we have said, there is no presumption one way or the other as to its exercise. Each case must be considered on its own facts as a whole, and costs say and should be awarded in all cases where the court thinks it right to do so. It is impossible to catalogue all the factors that should be weighed. Clearly, however, matters such as whether the prosecution have acted unreasonably in starting or continuing proceedings, and whether the accused by his conduct has, in effect, brought the proceedings, or their continuation, upon himself, are among the matters to be taken into consideration. On the other hand, the court desires to make it plain that they entirely disassociate themselves from the view that the judge is entitled to base his refusal to award costs on the ground that he thinks that the verdict of the jury was perverse or unduly benevolent. The mere fact that the judge disagrees with the verdict of the jury is no more a ground for refusing to award costs to the acquitted person than the mere fact of his acquittal is a ground for awarding them (40).

Two days later, Lord Parker’s Direction was evaluated in a practical context. In R. v. Sansbury (41), Devlin, J., in granting costs to a defendant acquitted on a dangerous driving charge, stated that Lord Parker’s Direction had not laid down any new law, but had made it clear that the judge’s discretion to award costs was wider than had previously been thought. He went on to say: “I think it has now been made quite clear that the notion, which was very generally entertained, that the award of costs against the prosecution necessarily involved some reflection on the conduct of the prosecution or on the propriety of its being brought is quite wrong.”

Although Mr. Justice Devlin’s comments made it clear that the granting of costs was not to be interpreted as a criticism of the prosecution, the courts continued to exhibit a reluctance to award costs(42). Strachan (43) and Burns (44) noted that the courts appeared to prefer to follow the direction of Lord Goddard. Furthermore, in those instances where the court did award costs to the acquitted defendant, the amount awarded was substantially less then the sum requested as costs of the defence (45), although s.l of the Costs in Criminal Cases Act, 1952, stated that the amount awarded “shall he such sums as appear to the court reasonably sufficient to compensate…the accused for the expenses properly suffered by him in carrying on…the defence…”. This led to the incurrence in 1968 of a further Practice Direction by Lord Parker, C.J., in which he stated:

The court’s attention has been drawn to several recent cases in which… the judge…. has awarded less than the sum put forward as representing the costs of the defence. Once, however, the judge has exercised his discretion in favour of making an award of costs there is no further discretion to limit the amount awarded…. The proper approach is to assume the defendant to be of adequate but not abundant means and to ask oneself whether the expenses were such as a sensible solicitor in the light of his then knowledge would consider reasonable to incur in the interests of his client, the defendant….(46).

Although the Costs in Criminal Cases Act was revised in 1C173 iJ7) the new Act did not introduce any changes in the principles guiding the courts discretion in costs awards. However, on June 5, 1973, Lord Widgery, C.J., delivered a new Practice Direction that at first glance seemed to represent a racial shift from the prior restrictive practice of awarding costs to the defendant in only exceptional cases. Lord Widgery, C.J., stated that:

Although the award of costs must always remain a matter for the Court’s discretion, in the light of the circumstances of the particular case, it should be accepted as normal practice that when the Court has power to award costs out of central funds it should do so in favour of a successful defendant, unless there are positive reasons for making a different order. Examples of such reasons are:

  1. where the prosecution has acted spitefully or without reasonable cause. Here the defendants’ costs should be paid by the prosecutor;
  2. where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it really is. In such circumstances the defendant can properly be left to pay his own costs;
  3. where there is ample evidence to support a verdict of guilty but the defendant is entitled to an acquittal on account of some procedural irregularity. There again, the defendant can properly be left to pay his own costs;
  4. where the defendant is acquitted on one charge but convicted on another. Here the Court should make whatever order seems just having regard to the relative importance of the two charges, and to the defendant’s conduct generally (48).

These guidelines, with the exception of example (d) were reiterated in a 1981 Practice Direction handed down by Lord Lane, C.J. (49).

Although the Practice Direction has been of assistance in providing the courts with guidelines for use in the operation of its discretion, Thoresby (50) points out that the examples do not provide an exhaustive list of the factors that the court should take into consideration. Secondly, he argues that the examples are of limited utility because, with the exception of example (a), their meaning is not self-evident. The second exception, that of the defendant’s own conduct, is unclear in that it is not immediately apparent what conduct will be construed as bringing suspicion upon the defendant or misleading the prosecution. Example (c) is also vague in that ‘procedural irregularity” is an undefined, ambiguous term. Thoresby also criticizes Lord Widgery’s Direction because it impinges upon the principle of presumption of innocence and introduces a second class of acquittal. These criticisms will be discussed in greater detail below as they apply equally to those jurisdictions where guidelines have been incorporated into the legislative statutes governing costs in criminal cases.

Other commentators have also concluded that the Practice Directions are “vague in content”(51) and that there has been enormous variation in the exercise of the unfettered judicial discretion to award costs(52). Sharp stated that:

The exercise in England of the courts’ discretion in this respect has had an unhappy history. The judges themselves have pointed out that principles intended by the legislature to govern the matter have been misapplied, and that many misconceptions have surrounded the subject (53).

Furthermore, the very use of Practice Directions has met with some criticism on the grounds that is the function of the legislature, and not of the courts, to provide guidelines if necessary. Burrows notes that the criteria can be objectionable as being pure judicial invention. Be points out that: “The legislature has conferred an unfettered discretion, and for a court to attempt to… formulate rules for its exercise may seem to run counter to the avowed legislative intention”(54).

As a result of the many disadvantages inherent in an unfettered judicial discretion system, several jurisdictions have opted for a system of judicial discretion coupled with a list of factors that the court must consider in the exercise of its discretion.

Alternative No. 2: Discretion with legislative guidelines

This approach was recommended by the Law Reform Committees of New Zealand and Tasmania (55), and adopted in their respective Costs in Criminal Acts (56). It also forms the basis of the New South Wales Costs in Criminal Cases Act. (57) In Canada, the approach was endorsed in the Burns Report, and the B.C. Law Reform Commission’s Working paper, and recommended in the Commission’s final report (58).

Under the New Zealand Costs in Criminal Cases Act, 1967,if an accused is acquitted or discharged, or the information is dismissed or withdrawn, the court may order that the accused be paid such sums as it thinks just and reasonable towards the cost of his or her defence (57). Although the court has a discretion to award costs, it must have regard to relevant circumstances and, where appropriate, take into account seven factors (s.5(2)(a)-(g). Factors (a) to (d) relate to cases where the prosecution is at fault and suggest grounds for the awarding of costs. Factor (e) covers cases where the defendant has affirmatively proven his or her innocence. The last two factors, (f) and (g), indicated situations in which costs to the defendant would be refused.

The New Zealand Law Revision Committee developed these criteria on the basis of the following policy analysis:

We think everyone would agree that if a prosecution is brought either maliciously or unreasonably the defendant should receive his costs. On the other hand none of us consider that a defendant should expect costs merely by virtue of his acquittal; nor do we think this would commend itself to legal or public opinion generally. There is a substantial class of cases where in the popular phrase the accused is “lucky to get off”—the prosecution has not quite clinched the case or the exacting standard of proof in criminal cases is not quite satisfied. Alternatively, the accused may by his misconduct or lack of candour contribute to his own misfortune—he has “brought it on himself”. In our opinion, it would ordinarily be wrong to award costs in these sorts of cases (60).

However, the Committee realized that an acquitted defendant might be entitled to costs in a case where the police had acted reasonably in bringing the charge. They therefore recommended that the defendant be awarded costs where he [or she] has “shown his innocence or the probability of his innocence”—i.e. where “he has ‘cleared himself’ either by discrediting the prosecution case or showing its insufficiency or by bringing credible witnesses of his own who have thrown a different light on the circumstances.” (61) Accordingly, the Act also provides that there is to be no presumption for or against the granting of costs (s.5(3))), but no accused is to be granted costs merely because he has been acquitted or discharged or the information dismissed (s.5(4)), nor is he to be refused costs merely because the proceedings were properly brought and continued (s.5(5)).

The recommendations of the Law Reform Committee of Tasmania were almost exactly the same as those of the New Zealand Law Revision Commission, resulting in a statute (Costs in Criminal Cases Act, 1976, (Tasmania)) which incorporated criteria that are virtually identical to the factors found in section 5 of the New Zealand Act. One difference between the statutes is that the Tasmania Act does not have an equivalent to s.5(2)(g) (conduct of the defendant) of the New Zealand Act. However, s.4(5) of the Tasmania Act does provide that a defendant shall not be refused costs merely because he or she remained silent in the face of the charges against him or her, or did not assist in the investigation. The Tasmania Act also states that the defendant shall not be granted costs by reason only of an acquittal, discharge, or withdrawal of the complaint (s.4(3)), nor is she or he to be denied costs because the proceedings were properly brought against her or him (s.4(5)).

Similarly, the B.C. Law Reform Commission’s Working Paper and Final Report both recommended the adoption, with minor modification, of the guidelines established under the New Zealand scheme(62). The only differences between the B.C. Law Reform Commission criteria and those of the New Zealand Act is that the former recommended an additional factor “(j)” which provides that where the accused is acquitted on one or more charges but is convicted on another or others, the court must consider the relative importance of the charges involved. The B.C. Commission also included two other factors, (h) and (i), which apply only to private prosecutions and which will be discussed in a later section. Finally, the Commission recommended, as in the New Zealand scheme, there should be no presumption either for or against the granting of costs in any case (63). Rather, the intention is that the accused should receive costs in those cases where the prosecution was brought maliciously or without proper investigation or the accused positively demonstrates his or her innocence. Conversely, the accused should not receive costs where his or her conduct contributed to his being charged or where she/he is acquitted on the basis of a technical defence (64).

Similar conclusions were reached in the Burns Report, based in part on the responses to questionnaires sent to a number of practicing criminal lawyers, prosecutors, and judges. The majority of lawyers who provided comments were in favour of a system whereby an acquitted defendant would be entitled to costs if he or she were “innocent” or where he or she was made to suffer additional and unnecessary expenses because of improper procedures taken by the prosecution (65). Genera1ly, the defendant would receive costs if on the balance of probabilities (civil onus) the trial judge or tribunal believed that the person was innocent (as opposed to being merely not guilty) with the onus being on the person claiming costs. Secondly, he would be entitled to costs where the prosecution had been frivolous or sloppy—e.g. where an accused as charged without there being a sufficient basis in law and in evidence; where poor police investigation led to the laying of a charge which never should have been laid; where charges were dismissed at a preliminary hearing; where remands occurred as the result of an unprepared prosecutor, etc. it was also suggested that the defendant should receive costs where a private complainant employed the criminal law system to settle a civil law matter, such as a debt or a bad cheque, particularly where the charge was withdrawn by the time of arraignment. Finally, practicing lawyers recommended that costs be awarded in cases where the defendant was being deliberately hassled by the police or a prosecutor—e.g. where a charge was laid realizing a conviction could not be obtained only to embarrass or financially penalize a defendant. Prosecutors who responded to the Burns questionnaire were in favour of cost awards in those situations where the prosecution was not justified in the circumstances (66). Similarly, the judiciary suggested costs be awarded where a frivolous or vexatious information was laid or where the Crown had proceeded in an improper or unfair manner (67).

The Burns Report concluded by recommending that the court should have discretion in the matter of costs awards and that a provision similar to section 5(2) of the New Zealand Act should be enacted detailing factors that should be considered in exercising that discretion (68). The report also recommended that there should be no presumption in favour of either party as to the granting of costs (69).

The New South Wales approach to costs awards is somewhat less detailed than the New Zealand and Tasmania systems, although the principles appear to be similar. The Costs in Criminal Cases Act, 1967 (NSW) provides that a certificate may be awarded to an accused who has been acquitted or discharged once the merits of the case have been determined (s.2(a)). A certificate may also be awarded where the defendant’s conviction has been quashed on appeal and he is discharged (s.2(b)). The certificate must specify that in the opinion of the Court or Judge: “(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act of omission of the defendant that contributed, or might have contributed, to the institution of continuation of the proceedings was reasonable in the circumstances”. Once the certificate has been awarded, the defendant then must apply to the Attorney General’s department for payment. The State Treasurer, on receipt of a report from the Under Secretary regarding the application, has discretion to determine what amount, if any, should be awarded to the defendant.

From the above discussion it is apparent that a ‘discretion with legislative guidelines’ system has received a wide measure of support, having been adopted by a number of jurisdictions and recommended by several Law Reform Commissions. The main advantage of this system is that it provides judges with some guidelines while not fettering their discretion to deal with the merits of each individual case. Thus flexibility is ensured while providing some guarantee that decisions will not be arbitrary or inconsistent. However, despite the attractiveness of this scheme, it has been criticized on a number of points.

The major area of controversy centres around those aspects of the guidelines which would provide for costs awards where the acquitted had affirmatively proved his innocence (70), but not where he had been acquitted on a technicality (71). The basis of the controversy is a conflict of opinion on the significance of a finding of “not guilty” and of the presumption of innocence (72). Those who support the guidelines argue that a verdict of not guilty does not establish innocence, but merely fails to assert guilt. For example, the McRuer Report stated that:

…under our system a verdict of acquittal…is not a judgment declaring the accused innocent, in a criminal trial the accused is presumed to be innocent. That presumption may be rebutted only by proper evidence that establishes guilt beyond a reasonable doubt. The verdict of not guilty merely establishes that the onus imposed by law has not been met (73).

On the other hand, others argue that a finding of not guilty is to be equated with innocence. Antkowiak is a proponent of this view as evidenced by the following statement:

A criminal prosecution is a proceeding in which the power of the state is brought to bear on one individual to punish him for an offence against society…. This system of criminal justice does not contemplate degrees of innocence, but maintains a strict dichotomy so that an individual once tried and found innocent will be protected from any taint of guilt in the future. Conviction is equated with guilt and acquittal with innocence (74).

Those who support the latter view, further argue that to draw a distinction between those who have positively proven their innocence and those who have not as a basis of costs awards is in effect to provide for different kinds, or degrees, of innocence. As John M. Sharp pointed out: “The disadvantage attached to providing that defence costs should ‘normally be awarded to the innocent’ would be the creation of two classes of innocence with costs and innocence without” (75). This would give rise to a middle ground between guilt and innocence (76) similar to a third verdict such as that which exists under Scottish law. In Scotland there are three verdict alternatives: guilty, not guilty, and not proven. Although either of the latter two verdicts ensures the freedom of the accused, the ‘not proven’ verdict indicates that there has been a deficiency of proof in the minds of the jury as to the guilt of the defendant, whereas the verdict of ‘not guilty’ represents a finding that the accused is in fact innocent of the alleged crime (77).

The introduction of various degrees of innocence via cost awards into Canadian jurisdictions has been objected to on a number of grounds. The primary objection is that an acquitted defendant will be severely stigmatized by a failure to receive a cost award, notwithstanding that he has been found not guilty (78). As the Law Reform Commission of Canada pointed out:

…if an accused is charged with a criminal offence and is acquitted without receiving costs there is at least the risk that in the public eye he will still be regarded as less than innocent. If he should not apply for costs a suspicion of guilt would be raised and if he should apply and be refused perhaps an even greater suspicion would be raised (79).

The B.C. Law Reform Commission, in its final reports, responded to this criticism by stating the opinion that must provincial offences carry “little moral stigma even when conviction results”(80). Although the Law Reform Commission of Canada recognized that the risk of stigmatization is less for Provincial offences of a minor or regulatory nature than for Criminal Code offences and other federal statute crimes (81), Peter Fraser, in a dissent to the B.C. Commission recommendations, argued that some Provincial offences “proscribe behaviour to which many people weld attach moral stigma” (82) for example, practicing medicine without a licence. For these types of people, an acquittal without costs may not be sufficient to re-establish their trustworthiness and integrity.

A second objection to a system which distinguishes between mere acquittal and positive affirmation of innocence is that a second judicial inquiry into costs—either by judge or tribunal would be necessary. This would further complicate the judicial process, and as Fraser pointed out, the second inquiry “could easily be lengthier and more complex than the trial itself” (83). More importantly, this second determination would undermine the role of the jury in the criminal justice system. According to Thoresby: “For many hundreds of years decisions of guilt or innocence have been taken solely by the jury; now, in a startling breach of principle, after the jury has returned its verdict of not guilty a second decision is to be taken by the judge…”(84). Furthermore, the judge or tribunal making the costs award decision could well be applying a different standard of proof than that applied at trial. The onus of proof at trial would be on the Crown to establish guilt beyond a reasonable doubt. However, in the costs inquiry, the onus would be on the accused to establish his or her innocence either on a preponderance of evidence or beyond a reasonable doubt. This would result in a further dilution of the principle of presumption of innocence.

Finally, a system that provides for two different kinds of acquittal could also involve constitutional problems regarding the distribution of legislative power between the provincial and federal governments. According to the McRuer Report:

The Federal Government defines the procedure to be followed in the criminal courts. It might well be that the Province could provide by appropriate legislation that a right to compensation should follow from a verdict of acquittal; but legislation providing for a second verdict or certificate that the court is satisfied that the accused is innocent as distinct from the verdict “not guilty”—would engraft a civil procedure onto the criminal procedure which, in our view, would be beyond the power of the Legislature and undesirable. The Federal Government has prescribed the procedure to be followed in criminal cases. The Province cannot involve it in any procedure to establish civil liability (85).

The guidelines in the New Zealand and Tasmania legislation, and the B.C. Law Reform Commission recommendation that would deny it to those acquitted on a “mere technicality”, has also been the subject of much criticism. Firstly, as Thoresby (86) and S.C. Burbury, C.J. (87), point out, what constitutes a “technicality” or “procedural irregularity” is unclear. According to Fraser “what some may regard as a technicality would be considered by others to be an absence of reliable information or a legitimate legal deficiency in the charge, such as charging an offence unknown to the law” (88). Secondly, even if agreement could be reached as to the meaning of “technicality”, to withhold a cost award from those acquitted on a technicality is to assume that the individual is probably guilty. But if our judicial system is predicated on the basis that judicial decisions are more often right than wrong, it seems more logical to assume that many defendants who are acquitted are in fact innocent. Fraser argues that a technical acquittal is not reliable indicator of guilt. He notes, for example, “Even where a defence is based on evidence tending to show innocence, it is standard practice for defence counsel to seek an acquittal on a technicality” (89).

Those who object to costs awards to the “technically” acquitted argue that it would be unacceptable to the public to see an individual acquitted on a technicality and then receive costs. For example, the New Zealand Law Revision Committee held the following opinion:

There is a substantial class of cases where in the popular phrase the accused is “lucky to get off”—the prosecution has not quite clinched the case or the exacting standard of proof in criminal cases is not quite satisfied…. In our opinion it would ordinarily be wrong to award costs in these sorts of cases (90).

However, as the Canada Law Reform Commission pointed out, it is not clear just how substantial this class is, nor does the New Zealand Committee explain why it would be wrong to award costs in these cases (91). The Canada Commission, on the other hand, is of the view “that if costs payments can be regarded not as “rewards” but as compensation for losses and expenses that should not be suffered by anyone in defending the prosecution of an offence then there is nothing “wrong” in awarding costs in this class of cases” (92). The Commission further argues that to not award costs to those acquitted on a technicality would be to compromise the criminal justice system itself:

The concern of our system is not to maintain the reputation of the technically innocent, but that of the system of justice itself. Those who would object to the payment of costs to acquitted persons whose factual innocence has not teen proved would thereby appear to regard the rule relating to proof beyond a reasonable doubt and various “technical defences”…as unfortunate obstacles to the proper administration of justice. And while the criminal law does place a number of evidentiary barriers in the path of the prosecution of a criminal charge, they are there as essential safeguards in order to keep the reach of the criminal law and those charged with its enforcement within reasonable limits. It follows therefore that while there may be some undeserving accused who are…”lucky to get off”, society as a whole derives a substantial benefit by the maintenance of tile rules that make such a disposition possible. It is on this basis that any intrusion on the value of the verdict of legal innocence should be resisted (93).

It would appear then that if technical acquittals are the result of inadequacies in the law, or in the operation of the courts, or the conduct of the prosecution, the remedy should be sought in the appropriate place, and not through cost awards. To penalize the technically acquitted individual because of the operation of the criminal justice system seems unjust.

Finally, a guideline that recommends withholding costs from those acquitted on a technicality is inconsistent with the Legal Aid concept. In Canada, Legal Aid is available to persons charged with either a federal or provincial offence, and without regard to guilt or innocence. Therefore, it is not uncommon that an accused who is eventually convicted will have received costs through the medium of Legal Aid. On what rational grounds then are costs to be denied to an acquitted defendant, albeit one acquitted on a technicality?

Another guideline which has been the subject of criticism is s.5(2)(g) of the New Zealand Act and recommendation 6(9) of the D.C. Law Reform Commission Report (see Appendix A). Although the guideline has been framed in a positive manner—i.e., whether the behaviour of the accused was such that he should receive costs, the implication is that other types of conduct may be grounds for not awarding costs. However, the guideline is extremely vague in that no indication is given as to what kind of conduct will be regarded favourably or otherwise by the judge or tribunal charged with making the cost award decision. Suppose the accused does not cc-operate and chooses to remain silent when questioned by the police. As Alec Samuels noted in his article “Acquittal of the Guilty”, there may be a number of reasons why a suspect or arrested person would remain silent. For example, states Samuels:

He might not appreciate what is relevant at the trial. He may be overawed by the police. He may be trying to protect someone else. He may wish to conceal other offences, or behaviour which is disreputable though not illegal (94).

However, given the wide-ranging discretion of the guideline, the accused’s silence may be considered as a ground for withholding a costs award. The Tasmania Costs in criminal Cases Act has addressed this problem in s.4(5) by providing that: “No defendant shall be refused costs by reason only of the fact that in the investigation of the offence…he remained silent or refused to assist in respect thereof.” However, there is no equivalent provision in the New Zealand Act or in the recommendations of the B.C. Law Reform Commission.

Some commentators have also objected to those guidelines which imply that costs should be awarded in those cases where the prosecution did not act in good faith, had insufficient evidence, or did not conduct the investigation in a reasonable manner (New Zealand Act, s.5(2))a)-(d); Tasmania Act s.4(2)(a)-(c); B.C. Law Reform Commission Recommendation #6(a)-(d). For example, Fraser argues that although police and Crown counsel actions may have to be reviewed from time to time, an award system is not the proper context in which this review should be conducted (95). Although Thoresby recognizes the validity of this criticism he also notes the difficulties of proving the tort of malicious prosecution (as discussed earlier) and concludes that cost awards may provide a speedier remedy in instances of unreasonable or bad faith prosecutions (96).

The New Zealand Costs in Criminal Cases Act and the B.C. Law Reform Commission final report both provide that there is to be no presumption for or against the granting of costs in any case (97). However, in a comment on the recommendations of the Tasmania Law Reform Commission, Burbury, C.J., argued that there should be a policy providing that either costs should he allowed unless there are special circumstances or vice versa, rather than the Courts’ having a general discretion coupled with suggested guidelines. His opinion that the vesting of a general discretion in the Courts in the area of cost awards is illusory, as evidenced by the application of the English Costs in Criminal Cases Act (98). On the other hand, the B.C. Commission justified its stance of no presumption on the grounds that: “The variety of possible meanings of the term ‘not guilty’ indicate that need for an open mind about the problem of reimbursing the costs of accused persons on acquittal and a flexibility about the appropriate solution” (99). However, evidence from other jurisdictions where similar systems are in force suggests that the courts have awarded costs in only a handful of cases (100). For example, the Tasmania Law Reform Commission noted that: “information obtained from the Department of Justice in New Zealand indicates that since the passage of the Costs in Criminal Cases Act, 1967 awards have been made only a little more freely than before, notwithstanding that it was a primary object of the statute to liberalize the attitude of the courts in this regard” (101). Similarly, the statistics obtained from the New South Wales Department of the Attorney General and Justice indicate a similar reluctance to award cost to the acquitted accused (102). Furthermore, an analysis of the cases reported subsequent to the 1976 enactment of the Tasmania Costs in Criminal Cases Act evidences a very conservative view of the Courts regarding cost awards. For example, in Regina v. Freshney (1977) Tas. S.R.126, Cosgrove, J., held that the power under s.4 of the Act to award costs to defendants is not to be exercised unless thee is some positive reason for doing so—i.e., some circumstance, other than acquittal, which whether or not it is bases on error, inefficiency, or irregularity gives the applicant a just claim on the community for payment of his costs. This principle was reaffirmed in Bradley v. Lawson (1978) Tas. S.R. 213, where Green, C.J., also added that the onus of persuading the court of the existence of such a positive reason is on the defendant applicant. Not surprisingly, there have been few reported cases where the acquitted defendant obtained a costs award.

In a dissent from the recommendations of the majority of the B.C. Law Reform Commission, Peter Fraser stated that he could see no reason why the experience in B.C. under the recommended scheme would differ from the experience in those jurisdictions having similar schemes (103). Even the majority recognized that a similar pattern of reluctance to award costs would develop in B.C. (104). However, their rationale was that if this occurred, the scheme could be altered. With due respect, it would seem to be logical to initially design a system which would avoid this possibility.

Finally, it can be argued that if a scheme of discretion coupled with legislative guidelines will result in few cost awards (in practice, if not in theory), defendants may be motivated to plead guilty and pay a fine rather than run the risk of incurring substantial legal expenses for which they will not be reimbursed. Sharp concluded that: “Any system which makes it tempting for a man to plead ‘guilty’ rather than advance what might be a perfectly good defence, is to be deplored” (105).

Because of the may disadvantages inherent in a discretion with guidelines system, some commentators (106) have advocated that costs be granted to the accused as of right on acquittal. This is the next alternative that will be considered.

Alternative No. 3: Costs as of right on acquittal

The main advantage of adopting a system which provides for automatic cost awards to acquitted and discharged accused is that it would avoid the problems inherent in the discretionary systems discussed above. Firstly, an automatic award would ensure uniformity of result, thereby avoiding the problem of inconsistent decisions and uncertainty on the part of lay people and lawyers as to what will be the court’s decision in any given case. It would also overcome any tendency on the part of the accused to plead guilty rather than face the financial hardship of defending his case. Secondly, an automatic award eliminates the necessity of third verdicts or the implication of degrees of innocence, thereby overcoming the problem of stigmatization of the acquitted accused who does not receive costs. Thirdly, the difficulties associated with technical acquittals—e.g., establishing a common meaning of ‘technicality’, would be eliminated. Furthermore, it would no longer be necessary for a judge or tribunal to scrutinize the behaviour of the defendant or the police or prosecution. Fourthly, an automatic awards system would simplify administration in that it would no longer be necessary to conduct a second inquiry into the issue of whether or not the acquitted accused should receive costs. Concomitantly, the criticism of a judge or tribunal usurping the jury’s function or undermining their verdict would no longer be relevant. Finally, an automatic awards system would be consistent with the rationale behind Legal Aid. For example, Sharp writes that: “A right to costs, and a generous measure of costs would seem to accord with a climate of legal opinion in which liberalization seems the keynote such as Legal Aid and payment of compensation to the victims of crime” (107).

Despite its many advantages, the automatic awards system has met with some criticism. One preferred disadvantage is based on the assumption that the public would not widely accept the system. The B.C. Law Reform Commission argued that an automatic award of costs would not maintain the reputation of the justice system. They were of the opinion that: An award of costs to the accused who is acquitted on an obvious technicality when the weight of evidence would otherwise support a conviction is more likely to bring the law into disrepute in the public eye than any theoretical violation of principle” (100). The issues regarding cost awards on technical acquittals have already been canvassed above. However, it may be added that in light of recent publicity surrounding the costs issue and lack of empirical data, assumptions about public attitudes may be nothing more than mere conjecture.

A second criticism of the automatic awards system is that such a broad scheme would be too expensive. In the present era of governmental budgetary restraint, this criticism certainly contains a measure of realism. The fear is that n such a scheme appeared to be prohibitively costly, no costs award system would be established. However, before the validity of this objection can be ascertained, it would be necessary to obtain recent statistics on the number of acquittals and the average costs incurred by defendants. If the system were to provide costs awards for those accused whose cases were dismissed prior to trial, statistics for this group should also be obtained.

Alternative No.4: Costs on the basis of need/expansion of Legal Aid

In light of concern about the expense of an automatic awards scheme, an appropriate compromise may be to provide costs to those acquitted who are in need. For example, Cahn and Stoebuck (109) have taken the position that reasonable costs of the acquitted’s criminal defence should be awarded to those lower and middle income defendants who are unable to qualify for state assistance as indigents. Similarly, Peter Fraser, in a dissent from the majority recommendations of the B.C. Law Reform Commission concluded that “If British Columbians are now being called upon to pay legal fees when it is not fair that they should do so, I believe that the solution lies in the expansion of Legal Aid” (110). The Canada Law Reform Commission also recommended the granting of costs awards to all acquitted and discharged persons based on economic need. In their opinion:

The best approach would be to provide for maximum costs to be awarded for lost wages, lost income, and for counsel fees and other costs actually incurred, to all acquitted or discharged accused persons whose income is below a particular level. This level could be fixed by determining gross income upon proof provided to the compensation tribunal and the system could be one of providing uniform costs to all those who qualify….(lll).

Alternatively, they suggested that amore equitable system would be to provide “proportional benefits decreasing in accordance with an applicant’s lesser need” (112). For example, if the base level for cost awards was an income of $15,000 per year an applicant with an income 10% over this level would receive 90% of his costs, or 50% over the level would receive 50% of his costs, and so on. They further suggested that if this plan seems too harsh, it could be made subject to a minimum limit of 25% of costs being available to all applicants.

The Canada Law Reform Commission also recommended that a board or tribunal be charged with the responsibility of making the costs award decision, rather than the court. Their rationale is that since: “The courts have no special ability to determine economic need and since nearly all provinces now have established compensation systems for victims of crime it would be a relatively simple matter to include costs awards” (113). The advantage of his proposal is that those persons who did not receive awards would not be stigmatized as the costs issue would not arise in the public court. Furthermore, it would avoid the potential problem of a judge or jury hesitating to acquit a defendant on the grounds that he may undeservedly, in their opinion, receive a cost award. Also this procedure would avoid instituting a comprehensive plan for awarding costs into already complex criminal proceedings.

Despite the initial attractiveness of this scheme, it is not without its drawbacks. Firstly, some applicants may be reluctant to disclose their income, either on principled grounds as somewhat of an invasion of privacy or because they feel entitled to a costs award regardless of their income. Consequently, the board or tribunal may be forced into time-consuming and complex investigations of the applicant’s income or financial assets. Secondly, some difficulty may be experienced in defining the criteria to be applied in determining “economic need”. It would seem extremely arbitrary to use simply a measure of income (e.g. all those earning $15,000 per year or less) or to provide proportional benefits (e.g. 80% of costs if income is 20% over $15,000). These criteria could be considered inequitable in that legal costs may represent a greater hardship to an individual who has dependents than to the single individual, despite that fact that their income is the same. Perhaps a system that uses “disposable income” as its base rather than gross income would be more equitable. Furthermore, those who are denied costs or receive only minimal awards may well complain that they have been unfairly discriminated against on the basis of income, arguing that they are as “innocent” as the person who does receive a costs award. The Canada Law Reform Commission dealt with this objection as follows:

And to their complaint it would be reasonable to respond that greater social justice would be achieved by this costs system than by one which attempts to single out the innocent—or by not having one at all which would probably be the case if the model proposed were one of compensating all acquitted and discharged accused persons with their full costs (114).

In conclusion, despite the difficulties of this alternative, may well be more preferable to restrict costs awards to those no can establish need rather than to create a second class of innocence. As the Canada Commission stated: “The value in the general criminal verdict of ‘not guilty’ would remain un-compromised and yet substantial justice would be achieved” (115).

Should costs be qwarded to the Crown on conviction of the defendant?

Another issue to be considered is whether a costs award system should be reciprocal—i.e., whether or not costs should be awarded to the Crown on conviction of the defendant. The Costs in Criminal Cases Acts of England, Northern Ireland, and New Zealand each vest discretion in the court to provide reimbursement for the costs of the prosecution. In New Zealand and Northern Ireland the respective provisions of the Act provide that the convicted defendant may be ordered to pay these costs, (116) whereas under the English statute the costs of the prosecutor may use either awarded out of central funds or paid by the accused, depending on in which court the matter was heard (117). Although there is a paucity of case law dealing with the New Zealand and Northern Ireland provisions, there has been a substantial amount of litigation concerning awards to prosecutors under the English statute. Practice Directives have not been issued on the subject of prosecution awards, as they have been for awards to the acquitted, but the cases have established some guidelines. For example, in R. v. Gaston (1971) 135 JP 157 and R. v. Judd (177) WLR 89, the court held that it was inappropriate to order prosecution costs when the defendant had been sentenced to a considerable term of imprisonment, for any money which the defendant had would be required for his rehabilitation upon release. In both of these cases the Court of Appeal (Criminal Division) quashed the order for costs. Furthermore, costs ought not to be excessive or unreasonable in relation to any fine imposed, nor should they exceed the means or capacity of the defendant to meet then within a reasonable time: R. v. Whalley (1972) Criminal Law Review 324. Finally, it was also held in R. v. McClusky (1921) W.N. 71 that there is no authority to order imprisonment for costs if the defendant against whom they have been assessed fails or refuses to pay them.

The general rule in the United States is that the accused hears the costs of his defence, whether he is found guilty or is acquitted. Furthermore, in a majority of jurisdictions a convicted defendant is also taxed the costs of his prosecution (118). If the defendant is unable or refuses to pay these costs, in many states he or she is imprisoned until the costs are paid or until he/she has worked out the costs. Thus an indigent who is convicted of a crime may serve time to pay his or her costs in addition to the time spent in prison to fulfil the sentence or fine. However, some states have no provisions for the taxation of costs against the defendant, or exempt all criminal defendants from the payment of such costs. Still others set a relatively short period for which the convicted defendant may be imprisoned for non-payment of costs (119).

Although the Costs in Criminal Cases statutes of Tasmania and New South Wales are silent as to awards to prosecutors upon conviction of the accused, both jurisdictions have other statutory provisions providing for such awards. For example, in Tasmania, s.25(1) of the Criminal Code Act, 1924, empowers the court to order a convicted person to pay the costs of the prosecution. In the case of appeals to the Court of Criminal Appeal, s.41-l(l) of the Code (as amended 1973, No.30) states that the court may make “such orders as to costs as it thinks fit”. However, the Law Reform Committee of Tasmania noted that in practice these provisions have seldom been exercised (120). An accused convicted on summary proceedings may also be required under s.77 of the Justices Act, 1959 (as amended 1974, No.108) to “pay to the complainant the whole or a specified proportion of his costs of and incidental to his complaint”. Similarly, in New South Wales, s.81(1) of the Justices Act,1902, authorizes judges in summary proceedings to make orders for costs to either the defendant upon dismissal or to the prosecutor or complainant upon conviction of the defendant. However, Hope, J.A., in A. Barton v. Berman and Another (1980) 1 NSWLR 63 noted at page 67 that “in practice, it was rare for orders for costs to be made under this section in proceedings brought by police informants until recent years…” He further stated that: “In respect of proceedings upon indictment, there was no statutory provision for costs before the 1967 statute (i.e. Costs in Criminal Cases Act) and orders were not made in favour of or against the Crown”. In summary, it would appear that with the exception of the United States, in practice, costs are either seldom awarded to the Crown or are subject to fairly restrictive guidelines, as in England.

Some commentators have advocated that any costs system instituted in Canada or in B.C. should provide for costs to be awarded to the prosecution. On the basis of questionnaires completed by practicing criminal lawyers, Professor Burns noted that the “legal profession appears to be split over the question of whether costs should be awarded in favour of the Crown”(121). The prosecutors who responded to the questionnaires were of the opinion that “costs should be awarded to the crown in appropriate circumstances” (122). Whereas the opinion of several of the justices was “that restraint should be exercised in awarding costs to the Crown” (123). In his report, Burns recommended that the Courts should have the power to award costs to the Crown (124).

However, a majority of Law Reform Commissions and other commentators have disagreed with the Burns recommendation and stated that costs should not be assessed against a convicted accused (125). Rather, they were in agreement with the principle stated in the McRuer Report that: “No person convicted of an offence should be required to subsidize the expense of his trial by having costs thereof levied against him” (126). Similarly, the Law Reform Committee of the Ontario Provincial Judges Association (Criminal Division), in a Report issued in August, 1972 were of the opinion that: “… the Crown should never in any way be awarded costs since nothing is to be gained by way of protection of the public, rehabilitation, deterrence or compensation of the stated by adding costs to the penalty imposed” (127). Although the B.C. Law Reform Commission Working paper was silent on the issue of cost awards to the Crown, in its Final Report the Commission it recommended that costs not be awarded to public prosecutors carrying out their normal duties (128).

From a policy point of view, a number of rationales have been advanced for assessing costs against convicted defendants (129). One rationale focuses on costs as compensation to the state for the expenses incurred as a result of the convicted defendant’s wrongdoing. A second rationale views the imposition of costs as a form of additional punishment of the defendant upon conviction. Thirdly, cost awards are justified on the ground that they discourage frivolous trial tactics and pointless trials.

Although these rationales are not without some merit, it can equally be argued that they are not valid justifications for imposing costs on the convicted defendant. For example, the compensation rationale is based on the premise that the costs of the trial should be borne by the person whose actions brought about the expense. In the words of Teree Foster:

The underlying rationale for obligating one convicted in a court of law to recompense the government for the time, resources, and energy expended in securing his conviction is obvious: the offender, whose transgressions of society’s laws served as the impetus for mobilizing the state’s criminal justice machinery against him, is the proper party to bear the financial burden incurred (130).

This position has a measure of realism, particularly if one advocates the awarding of costs to the defendant upon acquittal. But on the other hand, it can be argued that no costs should be imposed because every citizen pays taxes to support the judicial system and therefore should be entitled to have a “day in court” without bearing any additional expense. This view is based on the principle that justice is a governmental function and that the criminal law is enforced for the general public benefit. Thus to impose costs on the convicted defendant is to compromise the ideal of free and open justice.

The second rationale—the notion of costs as a further punishment for the crime—is the least supportable reason for imposing costs on the convicted defendant. Paul Stein summarizes the arguments against this rationale as follows:

If court costs are considered a financial penalty, they are assessed as an arbitrary addition to the punishment, without regard for those penological principles of sentencing by which a fine, or other sanction should be imposed. Consequently, their amount is usually unrelated to the ability of the defendant to pay or to the severity of the criminal offence. Further, when accompanying a sentence of imprisonment, the punitive effect of the financial assessment is extremely limited. When accompanying a fine, imprisonment for non-payment of costs conflicts with the policy implicit in the imposition of the fine (131).

Others, such as Lovell (132), have noted that it is contradictory to saddle the accused with a significant debt while stating the aim of integrating the offender into the community by giving him a fresh start.

The third justification for the imposition of costs against convicted defendants—i.e., to discourage unnecessary trials and time-wasting trial tactics—received some support by lawyers and members of the judiciary who responded to Prof. Burns’ questionnaires. Some lawyers were of the opinion that irresponsible conduct on the part of the defence could be checked by a liability for costs (133). Many of the judiciary also noted that the accused might cause delays that add to the ultimate cost of the trial (134). Although this possibility was of concern of the Canada Law Reform Commission, they rejected it as a justification, stating that:

While it is of course possible to conceive of a defence counsel attempting to employ improper tactics or for an accused to conduct himself in a disagreeable manner there is no necessity to penalize them with costs. Our courts have ample control over the use of their resources to control and prevent improper delay or the advancement of frivolous arguments without resort to the penalty of costs (135).

Furthermore, it can be argued that the threat of costs may inhibit the accused’s choice to plead not guilty or to make legitimate arguments and a reasonable defence. Even where costs are imposed only to discourage wasteful or abusive tactics, their threatened use would hang over guilty and innocent alike, thus leading to more pleas of guilty or plea bargaining in order to avoid potential financial loss.

Finally, there are many practical reasons why convicted defendants should not be burdened with the costs of prosecution. Firstly, the necessity of collecting these costs would require additional administrative procedures, as well as incurring additional expense. Also, the defendant may be judgment proof, or may have been defended under Legal Aid. Still others may be indigent which forces the system to find a solution for collecting costs from those unable to pay. In England, it must be established that the defendant has the means to pay before costs will be imposed, but in the United States many statutes provide for imprisonment for non-payment of costs. Numerous American writers have argued that such statues are unconstitutional as imprisonment for debt: violation of the Eighth and Thirteenth amendments; violation of due process; and as denial of the Equal Protection Clause (136). Other commentators have also pointed out that it is illogical to convert costs into a prison term because prisoners compound, rather than defray, state expense (137). The defendant’s cost for maintenance as a prisoner will normally exceed his worth to the state at hard labour. Furthermore, if the defendant has a family, his or her imprisonment could also mean additional welfare expense for the state. Imprisonment should only be used as punishment for a crime. Also, in some instances, the extra time served for the costs may be far greater than the original sentence (138).

Recognizing the undesirability of imprisonment for non-payment of costs, some states, such as Rhode Island and Vermont, allow for the release of the indigent, providing that reimbursement of costs be a condition of probation (139). However, this solution is also objectionable in that “far from kindling enthusiasm to work hard and earn money in a socially acceptable manner… the reimbursement condition may embitter (the convicted defendant further, rob him of his incentive, and dim his enthusiasm” (140). Also, revocation of parole on the grounds that the probationer does not pay, may discriminate on the basis of economic status. Silverstein concluded that: “To the extent that the convicted defendant is able to earn money while on probation, it should be used to support himself and his family and to make restitution if appropriate; otherwise society should bear the costs of his defense…” (141).

Another proposed solution to the problem of collection of costs is to allow for payment by instalment. Although this would lighten the financial burden imposed upon the convicted defendant, Lovell argues that it is improbable that the state would recover significant sums of money. He notes that: “Those that recidivate, and they are a substantial number, will make few repayments and many of those who go straight will not have incomes which permit repayment” (142). Consequently, it would seem that this solution also is of limited utility. An acceptable approach may he to charge only those convicted defendants who are able to pay the costs of the prosecution. However, it could be argued that it is unfair in principle to require those convicted accused who can afford it to pay costs, while not imposing costs on the indigent, in light of the above discussion, the necessary conclusion is that costs should not be awarded to the Crown in any event.

Private prosecution

A separate, although related issue is whether costs should be awarded to private prosecutors or private informants. The Canada Law Reform Commission noted that private prosecutions are still conducted in Canada, and recommended that costs be awarded to the private prosecutor where the prosecution was commenced upon reasonable and probable grounds and where the Crown unreasonably refused to conduct the prosecution (143). However, this recommendation was subject to the proviso that the costs would be paid front a compensation fund rather than levied against the defendant (144). The Commission further recommended that cost be awarded against a private informant or prosecutor where the prosecution was commenced without reasonable and probable grounds to believe that the accused committed the offence charged (l45). The justification for this imposition of costs is to discourage the individual citizen from using the court system to settle a private dispute. Similarly, the B.C. Law Commission recommended imposing costs against the private prosecutor who acts negligently or in bad faith (146). They also suggested costs be awarded to private prosecutors where the Crown had refused to proceed and where the prosecutor was attempting to protect a broader public interest rather than a private right (147). The advantages of adopting these recommendations are that they would encourage the private citizen to participate in the enforcement of provincial laws while simultaneously discouraging him or her from instituting frivolous or vexatious legal proceedings.

Recommendations

  1. New legislation should be enacted governing costs arising out of prosecutions of criminal and quasi-criminal offences.
  2. Where an accused is acquitted, or where an action, appeal, or application is stayed, withdrawn, or abandoned by the prosecutor, the accused be automatically entitled to an award of costs.
  3. That a central fund be established, appropriated annually and administered by the Dept. of the Attorney General (provincially) and the Dept. of the Solicitor General (federally) out of which costs awards maybe paid.
  4. The calculation of the amount of costs awarded should be made by an administrator of the fund, and should be reasonably sufficient to compensate the accused for expenses properly incurred by him or her, in carrying on the defense, which includes
    1. a. counsel fees
    2. witness fees
    3. travel and accommodation costs
    4. compensation for lost wages and
    5. other.
  5. Before an award of costs is made, the acquitted accused should be entitled to make submissions to the administrator of the fund.
  6. If the acquitted accused contests the award of costs made, a final appeal to the Courts should be available to determine the quantum of costs.
  7. In no circumstances should costs be levied against the accused on conviction.
  8. Costs should not be awarded to the Crown, as prosecutor, on conviction of the accused.
  9. Costs should be awarded, and payable out of the central fund, to a private prosecutor or private informant where:
    1. the prosecution was commenced upon reasonable and probable grounds or
    2. where the Crown unreasonably refused to conduct the prosecution: and where the prosecutor or informant was attempting to protect a broader public interest rather than a private right.
  10. On acquittal of the accused, costs should be levied against a private prosecutor or private informant where the prosecution was commenced without reasonable and probable grounds to believe that the accused committed the offence charged. Such costs are to be payable to the central fund.

Footnotes

1. B.C. Civil Liberties Association. Report on Law Reform Commission Study Paper #9. 1973

2. Law Reform Commission of Canada. Criminal Procedure: A Proposal for Costs in Criminal Cases August, 1973), p.9.

3. Blackstone Commentaries on the Laws of England, 18th ed. Vol. III (1829) at 400. See also: Chitty, “A Treatise on the Law of the Prerogatives of the Crown” (1820) at 310-11.

4. S.B.C. 1960, c.87, s.2.

5. S.B.C. 1974, c.24. c.86. Now: Crown Proceeding Act, R.S.B.C. 1979.

6. s.ll(l) “In proceedings against the Crown and Proceedings in which the crown is a party the rights of the parties shall, subject to this Act, be as nearly as possible the same as in a suit between person and person, and the court may (a) make an order, including an order as to costs, that it may make in proceedings between persons; and (b) otherwise give the appropriate relief that the case may require.

7. Law Reform Commission of B.C. Report on Civil Rights (Project No. 3) Part 2 Costs of an Accused on Acquittal. (1974) (hereafter referred to as Final Report), p.ll-12.

8. R.S.B.C. 1979, c.305. Formerly the Summary Convictions Act.

9. Law Reform Commission of B.C. Final Report, p.13-15.

10. Ibid, p.14.

11. Report of Sub-Committee on Costs in Criminal Acquittals, Vancouver Bar Association, Criminal Justice Subsection (hereinafter referred to as the Hyde Report) in Law Reform Commission of B.C. Working Paper No.9: Costs of the Accused on Acquittal, (May 1973) 137-147 at p.142-143.

12. Law Reform Commission of B.C. Final Report, p.14.

13. Ibid, p.14.

14. Ibid, p.15.

15. Ibid, p.17.

16. New Zealand Law Revision Committee. Report of Committee on Costs in Criminal Cases (1966) in Law Reform Commission of B.C. Working Paper (May, 1973), p.168

17. Law Reform Commission of B.C. Final Report, p.28

18. Ibid, p.18

19. Ibid, p.29

20. See New Zealand Law Revision Committee, supra, p.170; Report of Law Reform Committee of Tasmania. Recommendations in respect of the award of costs in favour of Defendants in proceedings on Indictment and summary proceedings (1971), p.10; Law Reform Commission of B.C. Working Paper. p. 53-54; Sharp, John M. “Costs on Acquittal: Some Comparisons and Criticisms” (1968) 16; Chitty’s L.G. 85.

21. Costs in Criminal Cases Act 1973 (United Kingdom); Costs in Criminal Cases Act, 1967 (New Zealand) s.7 (1); Costs in Criminal Cases Act, 1967 (New South Wales) s.4.

22. Sharp, John M., supra, p.85

23. New Zealand Law Revision Committee, supra, p.168

24. Cahn, Edmond. The Predicament of Democratic Man (1961) 51-52 cited in Lovell Russell E. “The Case for Reimbursing Court Costs and a Reasonable Attorney Fee to the Non-Indigent Defendant Upon Acquittal” (1970) 49 Neb. L.R. 515 at 535.

25. Sharp, John M., supra p.85.

26. Law Reform Commission of Canada. Criminal Procedure; A Proposal Commission Inquiry Into Civil Rights (McRuer Report) Report No.l, Vo1.2 (1968) p.835; Hargrove, Bernard “Costs on Acquittal’ (1959) 26 The Solicitor, lB4, p.1891 Lovell, Russell, E. supra, pp.522-23; Foster, Teree,E. “Settling Prosecution Costs on the Offender: How Rights are Priced in Illinois” (1975) 6 Loyala Univ. L.J.345, p.365.

27. New Zealand Law Revision Committee, supra, p. 169.

28. Lovell, Russell E., supra, p.525.

29. Foster, Teree E., supra, p.365.

30. Costs in Criminal Cases Act, 1968 (Northern Ireland), s.3 (3); See also Costs in Criminal Cases Act 1973 (United Kingdom) s.1(3); 3(3); 5(2); 6(2); 7(3); 10(2); etc.

31. Hyde Report, supra, p.147.

32. Samuels, Alex. “Costs for the Acquitted Defendant” (1971) Criminal L.R. 409-412, at 412.

33. Burrows, J.F. “Statutes and Judicial Discretion” (1976-77) 7, N.Z. Univ. L.R. 1-22, at 4.

34. Ibid., pp.ll-12

35. Samuels, Alex. “The Costs of the Innocent” (1973) 123 N.L.J. 487-488, at 487.

36. Hargrove, Bernard. “Costs on Acquittal” (1959) 26 The Solicitor 184-190, at 186-187.

37. Home Office Circular No. 193/1948: Practice Direction (1952) 36 Cr. App. R. 13; (1952) T.L.R. 1131:

Let me reiterate the principles that the judges think should be followed in this matter. While Section 44 of the Criminal Justice Act, 1948, in terms imposes no limit on the discretion of the court, it was never intended, and it would be quite wrong that costs should he awarded as of course to every defendant who is acquitted. Its use should be reserved for exceptional cases and each case should be considered on its merits.

38. See, for example; Selby and Firman, The Times newspaper, June 4, 1959; R. v. Rhodes, Ibid, June 9, 1959; Jones, lbid., June 19, 1959. Discussed in Sharp, John M. supra, pp. 78-79 and Hargrove, Bernard., supra., p. 184, 188-207.

39. Malcolm, C.B. “The Costs in Criminal Cases Act (N.I.) 1968′ (1968) 19 N.I. Legal Quarterly, 474-477, at 476.

40. Practice Note (1959) 43 Cr. App. R. 219i L1959) 1 WLR 1090; (1959) 3 All E.R. 471.

41. (1959) 3 All E.R. 472: (1959) 1 WLR 10911 (1960) 44 Cr.App. R 14; (1960) 124 J.P. 1.

42. See, for example: David v. Commissioner of Metropolitan Police (1962) 2 W.L.R. 682; R. v. Leeds Justices, ex.p.Lister (1966) Criminal Law Reform 2291 R. v. Liverpool Justices, ex, p. Roberts (1960) 2 All E.R. 3841 R. v. Phipps, ex, p. Allon (1964) Criminal Law Reform 410; Hunter v. Coomhs (1962) 1 All E.R. 904 discussed in Sharp, John M. supra, pp. 80-81.

43. Strachan, Billy. ‘Costs of the Defence” (1967) 117 N.L.J. 1373-1375, at 1373.

44. Burns, Professor Peter. Research Paper for the Law Reform Commission to the Matter of Costs in Criminal Cases (Oct. 1972) unpublished, p.72 (hereafter referred to as the Burns Report).

45. See for example: Powell’s cases, The Times Newspaper, Oct.12,1967 discussed in Sharp, John M., supra, pp.77-78.; de Rola’s case, The Times newspaper, Oct. 31, 1967.

46. Practice Direction, (1968)1 W.l.r. 389: (1968) 1 All E.R. 778.

47. Costs in Criminal Cases Act, 1973 (United Kingdom) c.14; incorporating changes made by the Courts Act, 1971.

48. Practice Direction, (1973) 2 All E.R. 592; (1973) 1 W.L.R. 718.

49. Practice Direction: ‘Costs: Acquittal of Defendant” (1981) 1 W.L.R. 1383.

50. Thoresby, Robert. “Practice Direction: Costs on Acquittal” (1973) 36 Mod. L.R. 643-646.

51. Report of the Law Reform committee of Tasmania, supra, p.12.

52. Samuels, Alex. “Costs for the “Costs for the Acquitted Defendant” (1971). Criminal Law Reform 409-412, at 411.

53. Sharp, John M, supra, p.78.

54. Burrows, J.F., supra, p.6.

55. New Zealand Law Revision Committee, supra: Report of Law Reform Committee of Tasmania, supra.

56. Costs in Criminal Cases Act, 1967 (N.Z.) No. 129; Costs in Criminal Cases Act, 1976 (Tasmania) No. 107.

57. Costs in Criminal Cases Act. 1967 (N.S.W.). No. 13.

58. Burns Report, supra; Law Reform Commission of B.C. Working Paper, Law Reform Commission of B.C. Final Report, supra.

59. Costs in Criminal Cases Act, 1967 (N.Z.) s.5(1).

60. New Zealand Law Revision Committee, supra, p. 167.

61. Ibid., p. 167-168.

62. Law Reform Commission of B.C. Working Paper. Supra, p.59-61; Law Reform Commission of B.C. Final Report. supra, p. 37-38.

63. Law Reform Commission of B.C. Final Report, supra, p. 35.

64. Ibid., pp. 29-30.

65. Burns Report, supra, p. 106.

66. Ibid., pp. 125-126.

67. Ibid., p. 121.

68. Ibid., p. 136.

69. Ibid., p. 141.

70. Costs in Criminal Cases Act. 1967 (N.Z.) s.5(2) (f); Costs In Criminal Cases Act. 1976 (Tasmania) s. 4(2) (e); Law Reform Commission of B.C. Final Report, supra, recommendation 6(f).

71. Costs in Criminal Cases Act, 1967 (N.Z.) s.5(2)(e); Costs In Criminal Cases Act, 1976 (Tasmania) s. 4(2); Law Reform Commission of B.C. Final Report. supra, recommendation 6).

72. See for example: Malcolm, C.B., supra, p. 475: Thoresby, Robert, supra, pp. 645-6.

73. McRuer Report. supra, p. 838.

74. Antkowiak, Michael J. “Constitutionality of Pennsylvania Statute Placing Costs on Acquitted Criminal Defendant” (1964-65) 26 Univ. of Pittsburgh L.R. 632-637, at 635.

75. Sharp, John M. supra, p. 85.

76. See for example: “Dissent of Peter Fraser” in Law Reform Final Report, supra, p. 39 (hereafter referred to as Fraser Dissent).

77. Law Reform Commission of B.C. Working Paper, supra, p.96; Bloomstein, Morris, J., Verdict: The Jury System. New York: Dodd, Mead, and Com., 1968. p.113.

78. McRuer Report. supra, p. 843: Lovell, Russell E., supra, pp. 531-532.

79. Law Reform Commission of Canada, supra, p. 11.

80. Law Reform Commission of B.C. Final Report, supra, p. 33.

81. Law Reform Commission of Canada, supra, p.ll.

82. Fraser Dissent, supra, p. 40.

83. Ibid., p. 39.

84. Thoresby, Robert. supra, p. 646 85. McRuer Report. supra, p. 842 86. Thoresby, Robert, supra, p. 644.

87. Burbury, S.C. “Reasons for Non-Concurrence by His Honour the Chief Justice.” in Report of Law Reform Committee of Tasmania, supra, p.2.

88. Fraser Dissent. supra, p. 39.

89. Ibid., p. 40.

90. New Zealand Law Revision Committee, supra, p. 25.

91. Law Reform Commission of Canada, supra, p. vi.

92. Ibid., p. vi.

93. Ibid., p. 8.

94. Samuels, Alex. “Acquittal of the Guilty” (1976-77) 3 Dalhousie L.J. 243-261, at 254. See also, Edsoin Raines, Arthur Maloney, and Paul Tomlinson, “Future of the Law of Evidence—The Right to Remain Silent—Two Views” in R. Salhany and R. Carter, eds. Studies in Canadian Criminal Evidence. (Toronto: Butterworth’s, 1972 pp. 321-47.

95. Fraser Dissent, supra, p. 39.

96. Thoresby, Robert, supra, p. 644.

97. Costs in Criminal Cases Act, 1967 (N.Z.) s.5(3); Law Reform Commission of B.C. Final Report, supra, p. 35.

98. Burbury, S.C.. supra, pp. 1-2.

99. Law Reform Commission of B.C. Final Report, supra, p. 35.

100. Ibid., p.35.

101. Report of Law Reform Committee of Tasmania, supra, p. 14

102. Law Reform Commission of B.C. Final Report. supra, Appendix E. F/N #2. p.58.

103. Fraser Dissent, supra. p. 28.

104. Law Reform Commission of B.C. Final Report, supra, p.35.

105. Sharp, John M. supra, p. 94.

106. See for example: Samuels, Alex. “The Costs of the Innocent” (1973) 123 N.L.J. 487-488, at 488; Sharp, John supra, p. 86.

107. Sharp, John M. supra, p. 86.

108. Law Reform Commission of B.C. Final Report, supra, p. 33.

109. Cahn, E. The Predicament of Democratic Man. (1961) pp. 51-52; Stoebuck, Counsel Fees Included in Costs: A Logical Development” (1966) 38 Col. L.R. 202.

110. Fraser Dissent, supra, p.40.

111. Law Reform Commission of Canada, supra. p.12.

112. Ibid., p. 13.

113. Ibid., p. 14.

114. Ibid., p. 13.

115. Ibid., p.10.

116. Costs in Criminal Cases Act 1967, (N.Z.) s.4(1); Costs in Criminal Cases Act,1968 (Northern Ireland) s. Z(1).

117. Costs in Criminal Cases Act, 1973 (United Kingdom) s.l(l) and s. 2(2) (Magistrates’ Court); s.31(1) and s.4(1) (Crown Court); s. 5(1)(Divisional Court) s.7 (2) and s. 9(1) (Court of Appeal; (House of Lords).

118. See, generally: ‘Criminal Law—Taxation of Court Costs” (1964) 17 Vand. L.R. 1572-1576: Lovell, Russell, supra, 515-535; “Charging Costs of Prosecution to the Defendant” (1971) 59 Georgetown L.J. 991-1006.

119. Law Reform Commission of B.C. Final Report, supra, p.26.

120. Report of Law Reform Committee of Tasmania, supra, p. 2 and p.4.

121. Burns Report, supra, p 114.

122. Ibid., p. 126.

123. Ibid., p. 123.

124. Ibid., p. 134.

125. Law Reform Commission of Canada, supra, pp. 14-15.

126. McRuer Report, supra, p. 927.

127. Cited in Burns Report, supra, p. 120.

128. Law Reform Commission of B.C. Final Report, supra, p. 34.

129. See generally: “Charging Costs of Prosecution to the Defendant”, supra; Magistrates’ Courts” Samuels, Alex, “Prosecution Costs in the (1979) 129 N.L.J. 133-135, at 133.

130. Foster, Teree, supra, p. 345.

131. Stein, Paul M. “Imprisonment for Non-Payment of Fines and Costs: A New Look at the Law and the Constitution” (1969) 22 Vand. L.R. 611-44, at 6221 See also “Charging Costs of Prosecution to the Defendant,” supra, p. 999-1000.

132. Lovell, Russell, supra, F/N #53, p. 526.

133. Burns Report, supra, p. 115.

134. Ibid., p. 123.

135. Law Reform Commission of Canada, supra, p. 15.

136. See generally: Smyth, John r. “The Assessment and Collection of the Costs of a Criminal Prosecution in Wyoming” (159) 13 Wyom. L.J. 178-185; Stein, Paul M., supra, p.611-44; Harvey, Albert C. “Jail Fees and Court Costs for the Indigent Criminal Defendant: An Examination of the Tennessee Procedure” (1967) 35 Tenn. L.R. 74-99; “Criminal Law—Taxation of Court Costs”, supra, 1572-1576; Foster, Teree E., supra, p.360; Lovell, Russell E., supra.

137. 519 Harvey Albert C., supra, pp.88-89.

138. “Criminal Law—Taxation of Court Costs”, supra. P.1573.

139. Ibid., p.1575.

140. “Reimbursement of Defence Costs as a Condition of Probation for Indigents” (1969) Michigan L.R. 1404-20, at 1420.

141. Silverstein, L. “Defence of the Poor” (1965) p. 115 quoted in Lovell, Russell, supra, p. 526.

142. Lovell, Russell, supra, F/N/ #53, p. 526.

143. Law Reform Commission of Canada, supra, p. 17.

144. Ibid., p. 16.

145. Ibid., p. 17.

146. Law Reform Commission of B.C. Final Report, supra, p. 36.

147. Ibid., pp. 36, 37, 38.