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APPEALS - Powers of appellate court - Costs

Thursday, August 19, 2021 @ 5:26 AM  

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Appeal by the Crown from two costs decisions against it. The respondent was charged with impaired driving. Ultimately, the Crown decided not to call any evidence on the basis it was no longer in the public interest to proceed and the charges were dismissed. By the time the Crown advised the respondent’s counsel it would not be calling evidence, the respondent and his counsel had already departed from Alberta to attend the trial in Newfoundland. The trial judge ordered the Crown to pay costs of $6,689 to the respondent. The summary conviction appeal judge dismissed the Crown’s appeal and ordered it to pay costs of $9,406 in respect of the appeal.

HELD: Appeal allowed. There was no evidence Crown counsel acted in bad faith or with an improper motive or that court orders were not taken seriously. While the Crown’s late decision not to proceed may have caused inconvenience and unnecessary expense for the respondent, in the absence of bad faith, it could not be said to constitute a departure from the reasonable standards expected of the Crown. The respondent’s choice of out-of-province counsel could not form a basis for a conclusion the Crown should be responsible for those costs absent a marked and unacceptable departure from the reasonable standards expected of the prosecution. Both the trial and appellate judges erred in the application of the legal standard to the facts. Their conclusions demonstrated a misapprehension of the law, which set a high threshold before an order for costs could be made against the Crown in a criminal matter.

R. v. Billiard, [2021] N.J. No. 207, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L., B.G. Welsh and F.P. O'Brien JJ.A., July 15, 2021. Digest No. TLD-August162021007