Edward Sapiano

The plaintiff filed a very late factum in a leave application, necessitating an adjournment.

The defendant requested that the leave application be dismissed due to the unreasonable delay.

The court declined to dismiss the application, noting the severe consequence of losing the right to litigate on the merits, but awarded $2,000 in costs to the defendant payable forthwith for the wasted court time.

Criminal appeal from convictions for impaired driving causing bodily harm and driving over the legal blood-alcohol limit, where identity of the driver was the only live issue.

The court held that the Crown's failure to preserve the vehicle for possible forensic testing breached the appellant's s. 7 disclosure rights and constituted an abuse of process under the lost-evidence framework in La, but did not justify a stay because the prejudice could be mitigated.

The trial judge nevertheless erred by preventing the defence from cross-examining on the consequences of the missing forensic evidence and by treating the absence of testing as irrelevant to reasonable doubt.

The convictions were set aside and a new trial ordered.