Tara Dier

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.

The Crown sought an extension of time to serve a notice of application for leave to appeal and notice of appeal after a summary conviction appeal judge quashed a conviction and entered an acquittal.

Applying the factors governing extension motions, the court held that the Crown formed a bona fide intention to appeal within time, exercised reasonable diligence in attempting service, caused no prejudice by two-day late service, and advanced an eminently arguable appeal.

The court also held that a structured internal Crown appeal approval process in criminal matters is appropriate and that a 20-day decision-making period was reasonable.

The extension was granted in the interests of justice.