What should the objection have come earlier and not on the last court date?

Ontario, Canada


The following excerpt is from R. v. Hartlieb, 2018 ONCJ 810 (CanLII):

20. Should the objection have come earlier and not on the last court date? The reason why the proceedings were put over from May 30, 2018 to October 3, 2018 was so that the defendant could obtain legal counsel and ensure that his witnesses could attend court as they went to the wrong address. The court finds that the prosecution bringing a Browne v. Dunn application at this juncture may be deemed appropriate. Certainly, it is not inappropriate. Given what transpired on May 30th, the prosecution did not have the opportunity to bring the application. The decision to have the officer available on the last court date can be construed by the court as the desire by both parties to have the officer present in the event that he would need to be recalled to either give further evidence or be cross examined on a relevant point. This is a situation where the line that has been drawn is indeed narrow.

21. Given the two remedies typically applied by the courts, that is to: recall the officer or simply give the appropriate weight to the officer’s evidence, the court, when looking at where we are in the trial proper, that the objection has been appropriately made and that the officer is available to be re-examined based on the evidence adduced by the defendant with regard to the label/sticker that according to the officer could not be removed from a vehicle but was removed from the defendant’s vehicle, finds that the test when applying the rule in Browne v. Dunn has been met. DISPOSITION

20. For the reasons set out above, the court finds that the proper remedy in applying the rule in Browne v. Dunn is to permit the officer to be recalled. Dated the 21st day of November, 2018, at the City of Toronto “J. Opalinski” Joanna Opalinski J.P.

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