Ontario Court of Justice

Date: 2024·10·28 Newmarket

Between: HIS MAJESTY THE KING — AND — DANA DRYDEN

Ruling on Charter Application Procedure

Submissions Heard: October 28, 2024. Delivered: October 28, 2024.

Counsel: Ms. Maia Caramana, counsel for the Crown Mr. Stephen Price, Ms. Min Pei, counsel for the defendant

KENKEL J.:

[1] This ruling considers a defence application to prevent the Crown from calling evidence in response to two Charter applications due to the late Crown response on the first application and no response on the second.

[2] The defence submits that the Crown should not be able to call evidence in response to the defence Charter applications as they did not respond in a timely way. The response to the sections 8,9 and 10 application came only two business days before trial. The ss 7 and 9 “overholding” application was filed on the same date but separately. It appears the Crown who responded to the first notice of application was unaware of the second.

[3] Rules are procedural and intended to facilitate the fair and expeditious determination of Charter issues at trial. The notice provisions ensure that neither party is taken by surprise and that both parties are aware of the factual and legal basis for the application – R v Grant, 2014 ONSC 1479 at para 19.

[4] I’m satisfied that the timing of the Crown’s response on the sections 8,9 and 10(b) application does not take the defence by surprise as it refers to information already present in the disclosure. The factual and legal basis of the application is plain. It would not be unfair to permit the Crown to call evidence in response.

[5] The fact that the second “overholding” application appears to have been missed doesn’t prevent a Crown response as the legal test is not in dispute. The factual basis is a narrow one. In this application though the Crown wishes to call evidence that was not disclosed to the defence. The witness is not available for trial today so the Crown may have to ask for an adjournment. Tendering such evidence would also result in a defence request for an adjournment.

[6] I find it would not be in the interests of justice to delay this case further to address that disclosure issue. The Crown may respond to the overholding issue based on evidence known to both parties, but there will be no adjournment to obtain other evidence not previously disclosed.

Delivered: October 28, 2024. Justice Joseph F. Kenkel