A ruling by a Newfoundland courtroom involving a dropped case in opposition to a person charged with drunk driving affirms that there should be egregiousness, unhealthy religion or oppressive conduct on the a part of a Crown for it to be hit with a prices award, says a lawyer.The July 15 determination by the Court docket of Attraction of Newfoundland and Labrador in R. v. Billiard 2021 NLCA 44 concerned Christopher Billiard, who in the summertime of 2016 was charged criminally with impaired driving and, alongside along with his lawyer, travelled from Alberta to Newfoundland to face a trial that, in the long run, didn’t occur.Throughout the run-up to his Dec. 8, 2017, trial, Billiard, who was working in Alberta on the time, and his counsel, who resided in that province, requested the 2016 upkeep and calibration data for the machine that was used to check his blood alcohol content material.This was supplied, however then Billiard wished these data for 2015, as nicely. In response to the written enchantment determination, the regulation concerning the Crown’s duty to supply this “was unclear” on the time.The trial decide ordered the Crown to supply the 2015 data inside 10 days, or by Nov. 16, 2017. The Crown despatched a request to the RCMP on Nov. 26 of that yr and was advised these data weren’t obtainable. On Dec. 7, the day earlier than Billiard’s trial was set to start, the Crown suggested him that proof wouldn’t be referred to as at trial, that the fees in opposition to him wouldn’t be pursued and that his Alberta-based lawyer may seem by phone.Nonetheless, Billiard and his lawyer had already left for Newfoundland.Billiard went after prices, together with what it had price to get himself and his lawyer to Newfoundland. The trial decide ordered the Crown to pay $6,688.88 in prices to Billiard. The Crown appealed to a abstract conviction courtroom, which upheld the decrease courtroom’s ruling and ordered the Crown to pay $9,406.08 for the abstract conviction enchantment.The Crown then appealed to the province’s Attraction Court docket. In response, Billiard requested that the courtroom throw out the enchantment and sought a further $8,273. He maintained the Crown did not adjust to a courtroom order to get data on the DUI measurement machine by a specified date and failed to satisfy a typical as a result of Billiard and his lawyer weren’t advised till the day earlier than the scheduled trial that the Crown wouldn’t be calling proof and, thus, not continuing with the prosecution.However Newfoundland’s Attraction Court docket overturned the prices awards, discovering that the trial Crown didn’t meet the edge of displaying a “marked and unacceptable departure from the cheap requirements anticipated of the prosecution.”Justice Gale Welsh, with Chief Justice Deborah Fry and Justice Francis O’Brien in settlement, discovered that such behaviour “would have interaction language equivalent to abuse of course of, improper motive, unhealthy religion, egregious misconduct, and oppressive, vexatious or reckless conduct.”These components have been absent on this case.“On this case, Mr. Billiard submits that the Crown did not adjust to a courtroom order insofar because the requested data was not supplied inside the designated ten-day interval,” wrote Justice Welsh. “Whereas the deadline ought to have been met, however was missed by ten days, the Crown did present the data inside an inexpensive interval and in adequate time previous to the scheduled trial. There was no proof that Crown counsel acted in unhealthy religion or with an improper motive, or that courtroom orders weren’t taken critically. The failure within the circumstances couldn’t be characterised as a marked and unacceptable departure from the cheap requirements anticipated of the prosecution.”Justice Welsh additionally addressed the difficulty of the Crown not contacting Billiard and his counsel till the day earlier than the scheduled trial.“This is able to not ordinarily have been uncommon or problematic. A ultimate evaluate of the proof and regulation by Crown counsel simply previous to trial is to be anticipated, and will result in a conclusion by counsel ‘on the steps of the courthouse’ to not proceed with the fees. Whereas this will likely trigger inconvenience for the accused and the courtroom, and will end in what seems to be pointless expense to be incurred by the accused, within the absence of some particular consideration equivalent to unhealthy religion, this might not be mentioned to represent a departure from cheap requirements anticipated of the Crown.”The Attraction Court docket then pointed its finger at Billiard.“Had Mr. Billiard chosen to be represented by native counsel, the difficulty wouldn’t have arisen. His selection was, after all, open to him, however can not type the premise for a conclusion that the Crown must be accountable for these prices absent a marked and unacceptable departure from the cheap requirements anticipated of the prosecution.”Kathleen O’Reilly, Crown at enchantment
The Crown at enchantment, Kathleen O’Reilly, says the ruling “affirms established authorized rules” that prices awards in opposition to Crowns in legal issues are distinctive and stay “a rare treatment and restricted to a really slender set of circumstances.”“I believe what’s actually essential to remove from this case is that … this take a look at of a marked and unacceptable departure from the cheap requirements anticipated of the prosecution actually requires some form of unhealthy religion or egregious conduct or oppressive conduct, and so inadvertence isn’t going to satisfy that normal, or inattention, and there was actually no conduct on the a part of the Crown right here that may represent that form of departure from the cheap requirements,” mentioned O’Reilly.The lawyer appearing for Billiard at enchantment didn’t return a request for remark.In case you have any data, story concepts or information ideas for The Lawyer’s Day by day, please contact Terry Davidson at [email protected] or name 905-415-5899.