The respondent, a military officer who was successfully acquitted of a charge of conduct prejudicial to good order and discipline, brought a motion for costs following the dismissal of the Crown's appeal.
The Crown argued the Court was functus officio.
The Court Martial Appeal Court held it was not functus officio as the issue of costs had not been addressed during the appeal.
The Court found that while the Crown's conduct was not frivolous or vexatious, the prosecution was pursued as a test case to determine the limits of military justice jurisprudence regarding Operation Honour.
Concluding that an individual accused should not bear the financial burden of a test case with systemic implications, the Court awarded the respondent party-and-party costs fixed at $10,000.
