ONTARIO COURT OF JUSTICE

CITATION: R. v. Nzeyimana, 2026 ONCJ 483

DATE: 2026 07 30

COURT FILE No.: Newmarket 998 25 91100281

BETWEEN:

HIS MAJESTY THE KING

— AND —

TRESOR LENNOX NZEYIMANA

Before Justice Michael Perlin

Heard on July 30, 2026

Reasons for Judgment released on July 30, 2026

Esti Azizi............................................................................................... counsel for the Crown

Sutikshan Raina........................................................................... counsel for the defendant

PERLIN J.:

[1] The Crown requests that the time for filing a Form 2 response to the defence Form 1 Charter application be shortened, under Rule 3.1(3)(a) of the Criminal Rules of the Ontario Court of Justice (“the rules”). The defendant opposes the Crown’s motion and asks that the Crown not be permitted to respond to the Charter application.

[2] The factual context is straightforward.

[3] The defendant is charged with driving with excessive blood alcohol contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.

[4] His trial was scheduled to begin today, July 30, 2026.

[5] One month ago, on June 30, counsel for the defendant filed a Form 1 and supplemental Form 1 alleging three Charter breaches: first, that the investigating officer lacked the reasonable suspicion required to demand that the defendant complete a roadside approved-screening-device test; second, that the arresting officer lacked reasonable grounds to arrest the defendant; and third, that the defendant’s s. 8 expectation of privacy was violated when he was video-recorded using the toilet at the police station.

[6] The Crown seeks to serve and file a response this morning. Crown counsel explains that she was away on vacation and only learned last night that the Form 1 had been filed. She prepared a response last night, which she shared with defence counsel at 9:30 a.m. today.

[7] During submissions, counsel agreed that at some point before the defendant’s materials were filed at the end of June, they had a discussion via email in which defence counsel indicated that he would be alleging Charter breaches under ss. 8, 9 and 10(b), and Crown counsel responded that those issues would need to be litigated.

[8] It is agreed that the Crown’s response does not comply with the rules. Subrule 3.1(2) provides,

(2) A response in Form 2 shall be served and filed with proof of service at least 15 days before the date of the hearing of the application, unless the Criminal Code imposes a longer period.

[9] It is also agreed that the court has discretion to permit the Crown to file a late response. Subrule 3.1(3)(a) provides,

(3) Despite subrules (1) and (2), the time periods set out in those subrules may be shortened or lengthened

(a) by an order of the Court ….

[10] The question I must decide is whether to exercise my discretion to permit the Crown to respond late, or strictly enforce the court’s rules, with the effect that the Crown would be required to “stand mute” and the defendant’s Charter application would proceed unopposed.

I. Principles governing the exercise of discretion under Subrule 3.1(3)(a)

[11] Rule 1.1 explains that the rules fundamentally aim to ensure justice, efficiency, and fairness:

1.1 (1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

(a) dealing with the prosecution and the defence fairly;

(b) recognizing the rights of the accused ….

[12] These principles inform the interpretation of the rules and guide the exercise of any power under the rules: r. 1.1(4).

[13] Counsel are expected to comply with the rules: r. 1.1(3). A response to an application is mandatory under r. 2.2. The commentary to that rule ties the requirement of a response to the fundamental aims:

The adversary system requires the participation of two informed parties. A timely and detailed response by the responding party is essential. Otherwise, the appearance of fairly administered justice may be impaired….

[14] The commentary accompanying r. 3.1, dealing with time for service, highlights the importance of compliance: “Timely notice of applications that are being brought under these rules is essential to the efficient management of trial proceedings.”

[15] Counsel provided several authorities. The defendant relies on R. v. Dumont, 2000 CanLII 16861 (ON CA), where the Crown filed no material responding to a Charter application, and sought leave to call responding evidence on the Charter voir dire. The trial judge precluded the Crown from doing so. The Summary Conviction Appeal court and Court of Appeal upheld that decision, noting that compliance with rules of court respecting responding materials is important, and holding that the power to abridge timelines is discretionary in nature.

[16] The defendant also cites R. v. Jia Lui (26 September 2018) Ont. C.J. (Ottawa, 0411-998-17-11083-00) (unreported), which speaks to the relevance of systemic non-compliance with the rules. This court refused to permit the Crown to adduce evidence in response to a Charter application. No responding materials had been filed. In ruling, the court noted, in effect, a systemic problem: “this is the second matter this week where the Crown has not filed a reply, and […] this has happened a number of times in this jurisdiction.”

[17] Counsel for the defendant points to R. v. Yung, [2002] O.J. No. 3218 (C.J.), R. v. Zakharchenko, [2014] O.J. No. 3254 (C.J.), and R. v. Barker-Campbell, 2025 ONCJ 90, as other examples where the Crown in Newmarket has failed to file responding materials in a timely manner.

[18] In Yung, this court barred the Crown from calling evidence responding to a Charter motion to exclude evidence. The Crown had filed no formal response. Instead, it had advised the defence by letter of an intention to rely on the evidence of the arresting officer “who will testify as per the disclosure you reviewed”. The court held that the Crown’s compliance with its disclosure obligations is not an adequate substitute for compliance with the rules regarding responding materials (at para. 10). No explanation was given why the Crown did not comply with the rules (at para. 11).

[19] The Crown relies on Barker-Campbell and R. v. Grant, 2014 ONSC 1479. In Barker-Campbell, this court recently permitted the Crown to respond to a Charter application after filing a response two days prior to trial (at para. 10). The explanation for non-compliance was similar to the one provided in this case. The Crown—like the Crown in the present case—“has […] fallen on their sword”, acknowledging that a busy practice and vacation led to an admitted failure to comply with the rules (at para. 11).

[20] In Grant, the Summary Conviction Appeal court dismissed an appeal against conviction where the Crown had inadvertently failed to file a written response until the morning of trial, and the trial judge had allowed the Crown to call evidence (at para. 3). In deciding whether the trial judge had erred in permitting the Crown to call evidence, the Court noted that a trial judge’s discretion is reviewable for a failure to act judicially, a failure to consider the relevant principles or weigh them reasonably, or where decision resulted in a miscarriage of justice (at paras. 16-18). The Court noted the rules are meant to ensure “that neither party [is] taken by surprise and that both parties [have] adequate notice of the factual and legal basis for a Charter application and the Crown’s response to it” (at para. 19). At paras. 21 and 22, the Court pointed to the following considerations as relevant to the trial judge’s exercise of discretion:

(a) “the nature of issues being addressed, their complexity, [and] whether there were novel issues;

(b) “whether [the accused would be] prejudiced if the Crown [was permitted to respond to the Charter application]”;

(c) whether “the evidence was going to be heard in any event on a blended trial/Charter application”;

(d) whether the Crown was “relying on anything that was not previously disclosed”; and

(e) whether “the failure of Crowns to respond within the Rules of Court was systemic”.

II. Application

[21] I accept the explanation provided by the Crown is true. As in Barker-Campbell, in this case, the Crown made a mistake. This case is not like Yung where non-compliance with the rules went completely unexplained. Here, the assigned Crown, through inadvertence, was unaware that a Charter application had been filed. When Crown counsel learned it had been filed, the night before the trial, she prepared a four-page Form 2 response. The defence does not allege the Crown’s conduct was in bad faith.

[22] Mistakes happen. Although compliance with the rules is important, I am satisfied that the fact that a mistake led to non-compliance with the rules does not, on its own, definitively determine whether some allowance should be provided. The question, as per the rules, is about justice, efficiency, and fairness.

[23] The defence argues that other instances of non-compliance with the rules evident in the cases cited hint at a systemic problem. I agree that if there were evidence of routine non-compliance by the Crown, this would call out more strongly for the court to denounce the non-compliance. Evident complacency regarding compliance with the rules of court could undermine public confidence in the administration of justice. As the Court noted in Grant, at para. 22, systemic non-compliance would push against receiving the Crown’s response on a Charter application:

Repeatedly permitting the Crowns to call evidence when they regularly fail to respond in a timely manner, on the bases the issues are routine, not complex etc. would defeat the purpose of the rules. It would encourage non-compliance and poor advocacy. That it would not have taken long to respond in a non-complex matter does not relieve either party from compliance.

(See also R. v. B.L.S., [2003] O.J. No. 4688 (S.C.), at para. 5.)

[24] However, I am satisfied that there is no evidence here of routine non-compliance. The defence cites examples in Newmarket from 2002, 2014, and 2025, in addition to Liu, from Ottawa in 2018, where a local practice of non-compliance was identified. The scant examples cited do not persuade me that there is a systemic problem in Ontario or in Newmarket in particular. I have no information to suggest that the assigned trial Crown has any history of non-compliance with the rules.

[25] In my view, in the absence of such systemic concerns or lawyer-specific concerns, the guiding principle in deciding how to proceed is prejudice to the defence: would proceeding with the trial today (or tomorrow) unfairly prejudice the defence?

[26] I see to no prejudice in allowing the Crown to file its response and adduce evidence relevant to the Charter issues at trial, or in commencing the trial today. As in Grant, where the Crown was permitted to file a response on the first day of the trial, the issues in the Charter application at issue are not complicated or novel. Whether grounds existed for a breath demand and an arrest, and whether video-recording of cell-toilets has violated a detainee’s Charter rights are issues that are litigated routinely in this courthouse. The leading cases, relevant legal tests, and the factual issues relevant to their application, are well known.

[27] While the Crown filed no response before today, I note that it was agreed before me by counsel that the Crown had indicated at some point that the Charter issues in this case would need to be litigated (although the cell-toilet issue had not been flagged by the defence at that time). There is nothing in the substance of the Crown’s response that would be particularly surprising to the defence. The anticipated evidence described in the Crown’s Form 2 is largely duplicative of the same portion of the defendant’s two Form 1s – largely a summary of the anticipated evidence of the relevant officers. The defence could not be surprised that the Crown would intend to call officers involved in the investigation as witnesses at the trial. There has been no suggestion that anything cited by the Crown in its Form 2 relies on information that has not been disclosed to the defence.

[28] It is expected that the trial will proceed with the voir dire in a blended fashion, such that hearing evidence from the Crown relevant to responding to the alleged Charter infringements should not prolong the proceedings. The defence will be in a position to cross-examine the Crown witnesses to challenge them on the relevant issues, ensuring procedural fairness: see R. v. Russell, [2993] O.J. No. 5266 (S.C.), at paras. 18-19.

[29] Counsel for the defendant cited the need to review the Crown’s Form 2, and to advise his client of its contents, as steps necessary to avoid prejudicing the defence. Given the relative brevity of the materials filed, at approximately 11:30 a.m., I held the matter down, with the intention of commencing the trial in the afternoon. Counsel for the defendant asked that we come back at 2:30 p.m., instead of the customary time, 2:15 p.m., to allow some additional time to speak with his client. I permitted this.

[30] Barring the Crown from calling any evidence in response to the alleged Charter breaches would harm the proper administration of justice and the truth-seeking function of the court. It would lead to a Charter application—which could be determinative of the criminal trial itself—being decided on an incomplete evidentiary record, without the benefit of responding submissions or an adversarial context.

[31] In all the circumstances, I am satisfied that this is an appropriate case in which to exercise my discretion under r. 3.1(3)(a) to permit the Crown to file its Form 2 late, in contravention of r. 3.1(2), and call evidence and make submissions in response to the defendant’s Charter application.

Released: August 14, 2026

Signed: Justice M. Perlin