In R. v. Billiard, 2021 NLCA 44, July 15, 2021, the accused was charged with the offences of operating a motor vehicle while impaired by alcohol and while having a blood alcohol content exceeding 80 milligrams of alcohol in 100 milllilitres of blood, contrary to the former sections 253(1)(a) and (b) of the Criminal Code. On the day before the date set for trial, the Crown decided not to call any evidence and the charges were dismissed. The accused and his counsel had travelled to the Province from Alberta to appear at the trial. The accused applied for an order of costs against the Crown. The order was granted by the trial judge and subsequently affirmed on appeal to the summary conviction appeal court. The Crown appealed to the Court of Appeal.

The appeal was allowed and the order of costs was set aside.  The Court of Appeal indicted that “[t]here was no evidence that Crown counsel acted in bad faith or with an improper motive” and that costs should not have been ordered (at paragraphs 28 to 31):

Mr. Billiard also submits that Crown counsel failed to meet the standard of reasonable conduct because he and his counsel were not advised until the day before the scheduled trial that the Crown intended not to call any evidence. This would not ordinarily have been unusual or problematic. A final review of the evidence and law by Crown counsel just prior to trial is to be expected, and may lead to a conclusion by counsel “on the steps of the courthouse” not to proceed with the charges. While this may cause inconvenience for the accused and the court, and may result in what turns out to be unnecessary expense to be incurred by the accused, in the absence of some special consideration such as bad faith, this could not be said to constitute a departure from reasonable standards expected of the Crown.

The issue was exacerbated in this case because Mr. Billiard, who was working in Alberta, had chosen to be represented by counsel located in Alberta. That choice resulted in time and expenses related to travel…

Had Mr. Billiard chosen to be represented by local counsel, the issue would not have arisen. His choice was, of course, open to him, but cannot form the basis for a conclusion that 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 demonstrate a misapprehension of the law, which sets a high threshold before an order for costs may be made against the Crown in a criminal matter.