The Crown sought leave to appeal from a summary conviction appeal decision upholding a trial judge’s refusal to permit viva voce evidence in response to the accused’s Charter application to exclude breath evidence.
The issue was whether rule 30.05(3) of the Rules of the Ontario Court of Justice in Criminal Proceedings required notice from the Crown where it intended to rely on such evidence.
The court held that the rule’s clear wording required compliance and that routine Crown disclosure did not eliminate the need to give notice of the basis for opposing the Charter application.
Although the trial judge had discretion under rule 2 to waive compliance, there was no error in refusing to do so in the circumstances.
Leave to appeal was granted, but the appeal was dismissed.
