R v Djevdet – 1998 OJ No. 3983 (SCJ – Hill):

[3] On September 4th, 1998, the applicant served the Attorney General of Ontario with a Notice of Application in Form 1 asserting a breach of s. 11(b) of the Charter and requesting a stay of proceedings pursuant to s. 24(1) of the Charter.

[4] The justice presiding at the pre-trial in this court on June 25th, 1998 was not informed that a s. 11(b)/s. 24(1) Charter application would be made in advance of trial.

[5] On Friday, September 25th, 1998, counsel for the applicant served the Crown, and filed with the court, an Application Record including the applicant’s affidavit, an applicant’s factum and eleven volumes of transcripts of proceedings in support of the Rule 27.01(c) application. The Rule 27.01(c) materials were to be filed at least fifteen days prior to the date of hearing (Rule 27.05(4)). No notice of application to abridge the time for filing, with supporting material, was filed with the court.

[6] Crown counsel is unprepared to respond to the application and, because of the late receipt of the applicant’s materials, has been unable to comply with any of the filing requirements of a respondent as described in Rule 27.05(3)(5).

[7] Rules of court do not exist simply for the sake of having rules.

[8] The Rules Respecting Criminal Proceedings in the Ontario Court of Justice (General Division) serve a critical function in enhancing the quality of the administration of justice in criminal cases. The requirements of the rules serve to focus proceedings and to secure a minimally adequate record upon which to adjudicate.

[9] Integral to the effective operation of the regulatory regime are time limits for serving and filing relevant materials. The court has a discretion to dispense with compliance with the rules only where, and as necessary, in the interests of justice (Rule 2.02). The rules are intended to provide for the just determination of every criminal proceeding and are to be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay (Rule 1.04(1)). It is in the spirit of these organizing principles that a court may exercise its discretion to abridge any time limit prescribed by the rules (Rule 3.02(1)).

[10] Where an applicant’s materials are filed on the eve of trial or of a hearing date, other than in compliance with established time limits, the responding party is generally disadvantaged. The Crown is inevitably unfairly pressed for time to investigate the applicant’s affidavit evidence, to prepare its own responding affidavits, to decide whether to cross-examine on affidavit evidence before an examiner, if so advised to conduct the cross-examination, and, to prepare and serve and file a respondent’s record and factum.

[11] The extent of prejudice to the Crown is likely to be directly proportional to the degree of non-compliance with the temporal requirements of the rules. The less the preparation time afforded a respondent, the greater the danger that something akin to an ex parte proceeding will be conducted. This result diminishes the repute of the administration of justice. The adversary system requires the participation of two informed parties. As well, it miscasts the role of the court, and impairs the appearance of fairly administered justice, to require the presiding judicial officer to in effect, factually and legally “top up” one litigant’s case.

[12] Cory J. observed in R.(D.S.) v. The Queen (1997), 118 C.C.C. (3d) 353 (S.C.C.) at 385: Even in the absence of explicit constitutional protection, it is an important principle of our legal system that a trial must be fair to all parties — to the Crown as well as to the accused.