Client acquitted at trial of aggravated assault on a “shaken baby syndrome” allegation. Court finding in addition a Charter breach by the Crown for failing to disclosure relevant materials to the Defence concerning impeachment evidence to be used against a defence expert that was to be called. Trial Judge refused to grant a stay of proceedings but did award “throw away” costs, determined to be approximately $5,300. Crown refused to pay the costs and sought leave to appeal to the full appeal court.

Held: Court found that the disclosure issue was important as there was both little jurisprudence on the point, and it engaged possible Crown’ misconduct. However the Court refused the Crown leave after it refused to indemnify the client’s costs on the appeal. Accused indicated he would not participate further in the appeal as the cost of doing so would exceed the potential benefit sought (ie the $5,300). Without this indemnification the accused would suffer serious prejudice as he could not afford the necessary litigation to support the initial award. Further the Court ordered additional costs against the Crown of $1,000 to be applied against the costs incurred by the client on the leave application itself.