R v Dowd, 2020 MBCA 23
[30] It was entirely appropriate for the trial judge to raise with counsel a potential breach of the rule on her own motion provided that a fair procedure occurred thereafter. In addition, like a jury, a trial judge deciding a case does not have to convey to counsel his or her impressions about the evidence or matters that the law requires must be considered before making findings of fact. However, the problem here is that the first time the parties learned about the application of a legal rule against the accused (which involves the exercise of considerable discretion) being relevant to the trial judge’s findings of fact was when she delivered her reasons for decision.
[31] The Crown’s submission that it was “unrealistic” for the trial judge to recall witnesses or hear further submissions after the closing arguments is unpersuasive. The trial judge could have advised counsel of her concern about a breach of the rule and possible remedies and decided on a procedure, bearing in mind the requirements of sections 650(1) and 800(2) of the Code. The Crown’s submission that it would have been inconvenient to reconvene the trial at all because it took place in the town of Ashern (roughly a two-hour drive from Winnipeg) is unconvincing.
[32] The accused was not entitled to a perfect trial; however, it would be more than simple irony to conclude that a law designed to prevent trial by ambush could itself be deployed to the surprise of the parties by the Court on its own motion in a manner that affected the result of the trial. The fundamental fairness of the accused’s trial was compromised by the trial judge’s application of the rule. In such circumstances, it was an error for the appeal judge to dismiss the accused’s appeal because of appellate deference.
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