Appeal from costs order arising from a multi-count sexual assault trial involving the accused’s daughters. Accused testified, was believed and acquitted. Trial judge found that the Crown should have realized after the complainant’s evidence that there was no realistic basis to continue the trial, and ought to have withdrawn the charges. Accordingly, trial judge found the Crown’s conduct to be “improper” and awarded costs.

Held: Appeal allowed, costs order vacated.

Test is whether the Crown’s conduct was an “unacceptable departure from the reasonable standards expected.” The decision to call witnesses, and to continue with a case, is a core element of prosecutorial discretion, and is reviewable only on the basis of an alleged abuse of process.

M. McConaghy – Defence Counsel