New & Notable: $9.2 million, non-refundable expense for defence

Ripudaman Singh Malik was acquitted in the "Air India Trial". Malik spent four years in custody prior to the acquittal. The trial cost his approximately $9.2 million. After his acquittal Malik sought to have the Crown reimburse these costs.


Malik argued, inter alia, that the remarkable, unique and exceptional nature of the case together with the following two factors warrant the order of costs against the Crown:


First, that the Crown knew or ought to have known that the evidence of a central witness in the case against him was not credible. 


Second, that CSIS, in an act acknowledged by the Crown to have been "unacceptable negligence", erased certain surveillance intercept tape recordings.


Josephson J dismissed the application: 2012 BCSC 1002.


In doing so the court offered the following:


While this Court found at the conclusion of the trial that the Crown had fallen "markedly short" of the burden of proof required, I find that the applicant has also fallen markedly short of the burden required of him in this application, for these reasons:

1. This was not in any sense a "test case" where it would be unfair for the applicant to bear the costs of the Crown's desire to settle a point of law.

2. There is no suggestion of wilful misconduct on the part of the Crown.

3. After a court application, it was found that the applicant did not qualify for a Rowbotham order for funding of his defence.

4. The applicant entered into an agreement whereby he undertook to reimburse the government for advances made by it to the applicant in order to fund his defence.

5. While the costs of that defence were very high, there is no evidence that they were beyond the means of the applicant. He and his wife deposed at the bail hearing that they had $11,000,000 in assets.

6. The unacceptably negligent erasure of surveillance tapes by CSIS was inadvertent and there is no evidence that this prejudiced the defence in any significant way. That was the subject of a Charter application at trial and a remedy was granted.

7. As submitted by the respondent, despite the defence having raised similar concerns regarding the credibility of the witness Ms. D. in the bail hearing, the Associate Chief Justice found, even with his limited ability to assess credibility, that the Crown had a strong prima facie case and that the Crown "would be shamefully derelict in its duty if it did not proceed to trial": Malik and Bagri v. HMTQ,  2001 BCSC 2, at para. 25.

8. The acquittal of the applicant was just that; it was not a declaration of innocence. The media and public are free to read the judgment and come to their own conclusions. Costs cannot be awarded against the Crown in order to "underline" the acquittal, as submitted by the applicant.

9. While the Crown was aware of credibility issues regarding Ms. D., there is no evidence that it was acting irresponsibly to any degree in proceeding to trial. There was additional inculpatory evidence other than that led from Ms. D.

10. Only the fullness of a trial permitted a proper test of the credibility of Ms. D.

11. Prosecutorial discretion is not reviewable except in cases of flagrant impropriety, which is not alleged in this application: Krieger v. Law Society of Alberta, 2002 SCC 65. [Para 7]; [emphasis added].

Application dismissed.