In R. v. Deveau, the Nova Scotia Court of Appeal held that there is no need for a respondent to file a pre-motion brief which commits the respondent to particular evidence for the motion. Fichaud J.A., writing for the court, held that the respondent is not estopped from calling evidence on the motion if no such brief had been filed in advance.
The accused brought a Charter motion at the outset of her trial and the Crown did not commit to calling any evidence until after it had heard the evidence for the motion from the applicant. The Provincial Court judge held that a respondent must file a pre-motion brief committing the respondent to particular evidence prior to hearing the applicant’s evidence or else the respondent is estopped from calling evidence. He therefore allowed the Charter motion and acquitted the accused. Fichaud J.A. noted that no authority for the estoppel had been cited and held that the trial judge's view was not a principle of law. He therefore ordered a new trial.
September 22, 2011
Link to Decision
Marc Gibson & Sierra Robart
*
No comments:
Post a Comment