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[15] Before turning to the circumstances of the present case, it may be helpful to provide the overarching principled context for the analysis:
(1) Just as counsel are expected to comply with time schedules set by the court (R. v. Oliver, 2005 CanLII 3582 (ON CA), [2005] O.J. No. 596 (C.A.) at para. 29), participants in the justice system act “within a court structure that must accommodate thousands of individual litigants” and that system can only function effectively when there are genuine efforts to comply with procedural rules – a trial judge bears responsibility “to ensure the ongoing effective operation of trial lists”: Khimji v. Dhanani Estate, 2004 CanLII 12037 (ON CA), [2004] O.J. No. 320 (C.A.) at para. 35; R. v. Blom (2002), 2002 CanLII 45026 (ON CA), 167 C.C.C. (3d) 332 (Ont. C.A.)at 343 (“Trial courts are expected to run their courts efficiently and they are entitled to insist upon adherence to rules designed to ensure the proper administration of justice”); R. v. Loveman (1992), 1992 CanLII 2830 (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.) at 125 (“A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process”); R. v. Assoun (2006), 2006 NSCA 47 (CanLII), 207 C.C.C. (3d) 372 (N.S.C.A.) at 462 (leave to appeal refused [2006] S.C.C.A. No. 233) (“The rules of procedure…and the trial judge’s responsibility to apply them, promote trial fairness and encourage confidence in the administration of justice”). A trial judge is entitled to control the proceedings “and to intervene when counsel fail to follow the rules”: R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 190 C.C.C. (3d) 317 (Ont. C.A.) at 327.
(2) “Rules of court do not exist simply for the sake of having rules”: R. v. Djevdet, [1998] O.J. No. 3983 (S.C.J.) at para. 7. Rules of court, such as Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, facilitate the fair and expeditious determination of Charter issues and thereby enhance the quality of the administration of justice: Blom, at p. 341. Rules of court serve any number of purposes including avoidance of wasteful pre-trial preparation, contributing to reliable court scheduling, the securing of a minimally adequate record upon which to adjudicate, focus of pre-trial applications, etc. “In the adversarial trial system, the court, the accused, and the community are entitled to have two informed and prepared litigants conducting the case…The Crown is entitled to be represented in name and substance”: R. v. Kovac, [1998] O.J. No. 2347 (S.C.J.) at para. 42; R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) at 295. Put differently, the “interest of an accused in pursuing whatever avenue may assist in his defence does not trump all other interests engaged by the due administration of justice” (Oliver, at 31) and as noted in D.P.P. v. Hickey, [2007] IECCA 98 at p. 3 quoting The People (At the Suit of the Attorney General) v. Frank O’Brien, [1963] I.R. at 68 (“justice in criminal cases is not the exclusive preserve of defendants”).
(3) Rules of procedure provide an essential framework for the fair and orderly conduct of criminal trials: R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.) at 230 (leave to appeal refused [1986] 1 S.C.R. xiii). Rules of court are servants of these objectives (Blom, at 341) and some reasonable flexibility in their application is essential: Rules of the Ontario Court of Justice in Criminal Proceedings, Rule 2.02 (“The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time”). After all, “in all cases, justice must not only be done, but must be seen to be done”: R. v. Loewen (1998), 1997 CanLII 4338 (MB CA), 122 C.C.C. (3d) 198 (Man. C.A.) at 207. That said, “[s]ome element of discipline must be introduced into the bringing of Charter motions”: Kutynec, at 294.
(4) As a general rule, evidence subject to a defence application to exclude on account of an alleged Charterbreach is presumptively admissible until the accused persuades the trial court to the contrary. In other words, the defence, as in the case of a submitted violation of s. 10(b), bears the burden of production and persuasion on the issue of unconstitutionality and exclusion. The defence is expected to state with “reasonable particularity the ground upon which the application is made” and the court and prosecution are entitled to know the legal and factual basis including potential evidence to be called: Kutynec, at 297, 301-2. The court always requires “focused submissions”: R. v. Osmar (2007), 2007 ONCA 117 (CanLII), 218 C.C.C. (3d) 242 (Ont. C.A.) at 252. Given the placement of the burden to establish inadmissibility due to constitutional infringement, the obligation on the defence to provide such information does not derogate from the presumption of innocence or the defence right to refrain from assisting the prosecution: Kutynec, at 301. A particularized notice, and if necessary supporting material, is the first step toward a proffer of proof as the court determines whether the application has sufficient merit to advance: R. v. Pires; R. v. Lising (2005), 2005 SCC 66 (CanLII), 201 C.C.C. (3d) 449 (S.C.C.) at 463, 466-7 (no need to embark on evidentiary hearing when counsel “unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court”); R. v. Felderhof (2004), 2003 CanLII 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont. C.A.) at 516, 526, 537 (court may “require an offer of proof before embarking on a lengthy voir dire”); The Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice (Ontario), May 2006, at para. 320-1 (inappropriate for counsel to use oral submissions to “fill in the gaps” in written record required to be filed under rules of court). As it “brings the Charter and the administration of justice into disrepute when…it is used to “remedy” baseless and frivolous claims” (R. v. Elliott (2004), 180 C.C.C. (3d) 118 (Ont. C.A.) at 153), a proffer may not lead to a fully presented application.
(5) Notices of application and any related filings raising Charter matters are expected to provide real and meaningful notice of the alleged nature of the constitutional breach as well as the evidence to be presented in support (see, for example Rule 30.03(c)(d)(e)). Notices which are boilerplate, general, generic, skeletal, vague or misleading are contrary to the letter and spirit of the procedural rules: R. v. Francey (2002), 6 C.R. (6th) 386 (Ont. Ct. J.) at para. 6 (aff’d (2003), 42 M.V.R. (4th) 33 (Ont. S.C.J.) at 42-4). Charter litigation by ambush unfairly diminishes the necessary standard of equilibrium in the adversary system: R. v. Darrach(2000), 2000 SCC 46 (CanLII), 148 C.C.C. (3d) 97 (S.C.C.) at 125 (“The right to make full answer and defence does not include the right to defend by ambush”). An affidavit in support of a notice will only be necessary (Rule 30.05(1)(c), (2)) where other filed material does not describe with particularity the fact of a possible Charter breach: see Duncan J.’s suggested guidelines in Francey (OCJ), at para. 16-7; and R. v. Bosnjak, [2003] O.J. No. 6003 (Ct. J.) at para. 9.
(6) A trial judge’s decision whether to dismiss an application for want of compliance with rules of court or to make some other remedial order amounts to an exercise of judicial discretion: R. v. Dumont (2000), 2000 CanLII 16861 (ON CA), 149 C.C.C. (3d) 568 (Ont. C.A.) at 570-1. Such an exercise of discretion is ordinarily deserving of deference on review and subject to reversal “only if exercised on an erroneous principle or if it resulted in a miscarriage of justice”: Oliver, at para. 28; Blom, at 341, 343.
(7) While non-compliance with procedural requirements may lead to an entirely proper exercise of discretion to dismiss a Charter application, (Loveman at 125; Kutynec, at 296; Loewen, at 207), in arriving at such a result the trial court is obliged to consider all relevant circumstances including, in particular, prejudice to the prosecution as noted in Blom at 342:
…where a procedural rule such as Rule 30 is invoked to foreclose consideration of a Charter issue, non-compliance with the rule is not necessarily fatal to the Charter application. Rather, the trial judge is required to consider and weigh a variety of factors to determine what course of action is required by the purpose of the rule.
. . .
Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application.
See also: Loveman, at 127-8 (trial judge to consider prejudice to the Crown, specific nature of Charterargument, and impact the application would have in course of trial; here “trial judge did not properly balance the various interests. His ruling sacrificed entirely the appellant’s right to advance a Charter-based argument”); R. v. Marzocchi, 2006 CanLII 13096 (ON CA), [2006] O.J. No. 1648 (C.A.) at para. 7 (judicial exercises of discretion require the court to take into account “other aspects of the due administration of justice”); Kutynec, at 296 (summary dismissal only where court has “taken into account all relevant circumstances”); Francey(S.C.J.), at para. 36 (weigh prejudice to Crown); R. v. Beacon, [2005] O.J. No. 4664 (S.C.J.) at para. 2, 8 (no evidence the trial judge considered issue of “prejudice to the Crown, the merits of the Charter application or other options available before deciding” to dismiss); R. v. Ball, [2003] O.J. No. 286 (S.C.J.) at para. 12, 15-6 (trial judge failed to consider issue of prejudice to the Crown); R. v. Oslowski, 2006 ONCJ 488 (CanLII), [2006] O.J. No. 5036 (Ct. J.) at para. 25 (whether prejudice to fair and expeditious trial process).
(8) A trial judge should generally be reluctant to foreclose inquiry into an alleged Charter violation: Loveman, at 125. Less drastic options than summary dismissal, such as an adjournment or reorganization of a previously planned trial schedule, may do justice in the circumstances: Loewen, at 210; Loveman, at 127; R. v. Spiering, [2003] O.J. No. 4278 (S.C.J.) at para. 32-3 (have counsel precisely state nature of challenge before adjourning for Crown to consider its response); Blom at 343:
If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference to an order refusing to entertain the Charter application.
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