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| Patrick Ducharme |
Generally, all pre-trial applications are brought to the trial Judge to:
Prevent fragmentation
Provide factual foundation
Permit the trial Judge to reserve judgment on the application if not enough evidence at the present time.
All applications require an evidentiary basis for success; it is with this in mind that the Supreme Court of Canada suggests that some trial Judges may delay their decisions until all the evidence has been heard. Sopinka J. on behalf of the court wrote:
With rare exceptions that do not apply here a trial Judge is empowered to reserve on any application until the end of the case. He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised having regard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings, which take on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters. See Mills v. The Queen, [1986] 1 S.C.R. 863. The second, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. See, for instance, Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572, and Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086. Both these policies favour disposition of applications at the end of the case. In exercising the discretion to which I have referred the trial Judge should not depart from these policies unless there is a strong reason for so doing. In some cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include cases in which the trial court itself is implicated in a constitutional violation as in R. v. Rahey, [1987] 1 S.C.R. 588, or where substantial on-going constitutional violations require immediate attention as in R. v. Gamble, [1988] 2 S.C.R. 595. Moreover, in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule. (See Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 133.) This applies with added force when the trial is expected to be of considerable duration. See, for example, R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.2
Unless the issue to be decided needs little or no evidence, generally the court will be most reluctant to embark upon findings on a pre-trial motion without a proper evidentiary foundation.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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