Ian J. McKinnon

Following a successful appeal by the appellant regarding the deemed undertaking rule, the court considered the issue of costs.

The court had previously indicated a preliminary view that no costs should be awarded due to the novelty and public importance of the issue.

The appellant sought $12,000 in costs, while the respondent argued for no costs on the appeal but sought to retain the motion judge's costs award.

The Divisional Court confirmed its preliminary conclusion, ordering no costs for the original motion, the motion for leave to appeal, or the appeal itself, emphasizing the public benefit of clarifying a novel point of practice.

The appellant faced criminal charges for sexual assault and was also sued civilly by the complainant.

In the civil action, the appellant obtained discovery evidence, which his civil counsel shared with his criminal counsel to impeach the complainant at the criminal trial.

The motion judge ruled that the appellant needed court leave under rule 30.1(8) to use the evidence for impeachment and that sharing it with criminal counsel breached the deemed undertaking.

The Divisional Court allowed the appeal, holding that rule 30.1(6) permits the use of discovery evidence for impeachment without prior court authorization, and that sharing the evidence with legal advisors does not breach the undertaking.

The appellants were charged with conspiracy to import marijuana based on private communications intercepted under three judicial authorizations.

The authorizations included a 'resort to' clause permitting interception at any place in British Columbia resorted to by the named persons, which the police used to tap public pay telephones and surreptitiously enter residential premises.

The Supreme Court of Canada held that while the 'resort to' clauses were lawful under the Criminal Code, the failure to include minimizing conditions for public pay telephones and the surreptitious entry into private dwellings without specific authorization violated section 8 of the Charter.

However, the Court admitted the evidence under section 24(2) because the police acted in good faith based on the law as it was understood at the time, and dismissed the appeal.