The appellant appealed his conviction for operating a motor vehicle with an excessive blood alcohol concentration, arguing that the trial judge erred by allowing the Crown an adjournment to call a toxicologist in reply to defence evidence of bolus drinking, thereby improperly splitting its case.
The Superior Court of Justice dismissed the appeal, holding that the trial judge correctly permitted the Crown to call reply evidence.
The court found that the Crown was legitimately surprised by the defence's bolus drinking evidence, which was not anticipated from the initial alcohol influence report.
This evidence was deemed proper reply, not case-splitting, and the appellant suffered no prejudice as he was afforded an opportunity for surrebuttal.
