Un juge doit contrôler les procédures afin d'assurer le caractère équitable de l'audition qui a lieu devant lui

R. v. Loveman, 1992 CanLII 2830 (ON CA)

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A trial judge must control the trial proceedings so as to ensure fairness to all concerned. In the exercise of this inherent power, a trial judge may decline to entertain a motion where no notice, or inadequate notice, of the motion has been given to the other side. While a trial judge should be reluctant to foreclose an inquiry into an alleged Charter violation, there will be circumstances where no less severe an order will prevent unfairness.

In deciding how to proceed when faced with the Crown's objection, the trial judge had to balance various interests. He had to bear in mind an accused's right to raise constitutional objections to the admissibility of evidence and the Crown's right to have an adequate opportunity to meet Charter arguments made on behalf of an accused. In addition, the trial judge had to be concerned with the effective use of court resources and the expeditious determination of criminal matters. This latter factor was of particular concern in this case because there had already been some considerable delay (attributable to the appellant) in bringing the matter to trial.

In balancing those interests in this case, the trial judge should have considered the absence of any statutory rule or practice direction requiring notice, the notice that was given to the Crown, the point during the trial proceedings when the appellant's counsel first indicated he intended to seek exclusion under s. 24(2) of the Charter and the extent to which the Crown was prejudiced by the absence of any specific reference to a Charter-based argument in the notice given to the Crown. The trial judge also should have considered the specific nature of the Charter argument which counsel proposed to advance and the impact the application could have on the course of the trial.

This particular application would have had no effect on the course of the trial, save adding legal argument. This was not a case where the different onus arising in Charter applications need have had any effect on the manner in which the evidence was led. The evidence relevant to the Charter application was the same evidence which the Crown was obliged to lead in its effort to demonstrate compliance with the Criminal Code.

In my opinion, the trial judge did not properly balance the various interests. His ruling sacrificed entirely the appellant's right to advance a Charter-based argument. The other interests engaged did not require the order made by the trial judge. As Crown counsel suggested, there were other alternatives. The trial judge could have heard the entire case except the Crown's legal argument in reply to the Charter argument, and then, if necessary (and it may well not have been necessary), allowed Crown counsel a brief adjournment to prepare his response to the legal issues flowing from the Charter argument.