Tina Deveau was charged with impaired and "over 80". Prior to her trial she filed a Charter motion to exclude evidence based on alleged violations of her rights under sections 8, 10(a) and 10(b). The Crown apparently did not file a response.
At trial a debate ensued over how the motion and trial should proceed. The defence insisted that the Crown had to call evidence to establish a prima facie case before it was required to call evidence on the motion. The Crown argued that the defence had to call evidence to establish the breach and it would decide thereafter if it would call evidence. Ultimately Deveau testified on the Charter motion. The Crown then sought to call evidence on the breach and the defence objected. The trial judge outlined the defence objection:
So therefore, at this point in time, having heard the Defence’s evidence, the Crown ought to be estopped from calling evidence, viva voce evidence, on the matter.
The trial judge then held the Crown was precluded from calling evidence:
So the Crown, having heard what the Appellant had to say, in my view, having not given the Applicant any notice of what its position was through a brief cannot now call a witness to present its position. To me that would be procedurally unfair, and I will not admit that.
The trial judge granted the motion and Deveau was acquitted.
The Crown successfully appealed and Deveau appealed to the Nova Scotia Court of Appeal: 2011 NSCA 85. The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal court, and concluded as follows:
The Crown had provided disclosure of its evidence for the prosecution proper. The Crown had made it clear that the Crown would decide whether or not to call evidence on Ms. Deveau’s Charter motion after the Crown heard Ms. Deveau’s evidence for that motion. The Crown was entitled to take that position. The Provincial Court judge’s view was that, before the respondent to a motion hears the applicant’s evidence, the respondent must file a pre-motion brief which commits the respondent to particular evidence for the motion. Failure to comply, according to the judge, precludes the respondent from calling evidence. That view is not a principle of law. No authority for such a preclusion or estoppel has been cited. Had the Crown been permitted to lead evidence in response to the defence motion, the defence would have been entitled, in appropriate circumstances, to an adjournment or to lead rebuttal evidence [para 10[.
Two aspects of this case are curious. First, on an alleged section 8 violation, in the context of "over 80" cases, the onus is on the Crown as there is a warrantless search which is presumed unreasonable.
Second, it is odd that the matter did not proceed by way of a blended trial/voir dire. In cases such as this the usual course is to proceed in that manner. It is efficient and effective. Having not proceeded in that fashion in this case - for some inexplicable reason - has resulted in three different judicial proceedings and now will result in a new trial. Absent some compelling reason, the trial judge should have queried why the matter did not proceed in that fashion.