R v Dumont

R. v. Dumont

[2000] O.J. No. 3413
Ontario Court of Appeal — Labrosse, Weiler and Sharpe JJ.A. | September 19, 2000

Background

Karen Dumont was charged with impaired driving and driving over 80 under sections 253(a) and 253(b) of the Criminal Code. Before trial, her lawyer filed a Charter application seeking to exclude the breathalyzer evidence, complete with a supporting affidavit from Dumont herself.

The Crown? They filed absolutely nothing in response. Then, on the trial date, they waltzed into court and asked the judge for permission to call the arresting officer as a witness. The defence objected, arguing the Crown had violated Rule 30.05(3) of the Ontario Court of Justice Criminal Proceedings rules. The trial judge agreed, refused to let the Crown call their witness, excluded the breathalyzer evidence, and acquitted Dumont.

Issues

1. Does Rule 30.05(3) require the Crown to give advance notice when they want to call live evidence in response to a Charter application?
2. Did the trial judge properly exercise discretion in refusing to waive the rule violation?

The Procedural Rules Matter

Rule 30.05(3) is crystal clear: "Where the respondent seeks to rely on material that is not required to be filed under subrule (1) or (2), the respondent shall file documentary, affidavit or other evidence upon which reliance shall be placed no later than five days before the hearing of the application."

The Ontario Court of Appeal emphasized that routine disclosure doesn't eliminate the need to follow this rule. At minimum, the Crown should have given notice of the basis for opposing the Charter application. The court found that while judges have discretion under Rule 2 to permit violations, the trial judge made no error in refusing to waive compliance here.

This isn't just bureaucratic box-ticking — these rules exist to ensure fair hearings where both sides know what evidence they'll face. The Crown can't ambush the defence with surprise witnesses, even police officers.

Key Takeaway

Procedural rules apply equally to both sides — even the Crown must follow filing deadlines and notice requirements.

If you're facing a Charter application or responding to one, pay careful attention to the procedural rules. Courts take these deadlines seriously, and failing to comply can result in evidence being excluded or witnesses being barred from testifying.