R. v. Brink

R. v. Brink

The trial judge erred by excluding Cst. Rojas' identification evidence because she failed to identify the evidence, conflated 'undisclosed witness' with undisclosed evidence, and did not conduct the required inquiry into materiality and probable prejudice under O'Connor. The Crown's late notification did not justify the testimonial exclusion remedy; Crown discretion to call witnesses was improperly interfered with absent mala fides. The exclusion is overturned, the acquittal set aside, and a new trial ordered.

Citation
2002 BCSC 1612
Parties
Appellant: Regina; Respondent/accused: Donald Brink
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
22 November 2002
Procedural Posture
Crown Appeal (criminal) / Appeal From Acquittal
Outcome
Trial judge's exclusion overturned; acquittal set aside; new trial ordered; respondent's application to adduce fresh evidence refused
Legal Topics
Driving While Prohibited, Identification Evidence, Late Disclosure of Witnesses, Testimonial Exclusion Remedy, Fresh Evidence on Appeal, Crown Disclosure Obligations
Source Language
English
Criminal Law Evidence Charter Remedies Disclosure Driving While Prohibited Identification Evidence Late Disclosure of Witnesses Testimonial Exclusion Remedy +2 more

Case Brief

Summary, issues, holding and outcome

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Parties

Regina

Appellant

Donald Brink

Respondent/accused

Procedural Posture

Crown Appeal (criminal) / Appeal From Acquittal

Legal Issues

  1. 1 Whether the trial judge properly excluded identification evidence as a remedy for alleged non-disclosure
  2. 2 Whether late disclosure of the identity witness justified exclusion under s.24(1) of the Charter
  3. 3 Whether the trial judge conducted the required O'Connor analysis of prejudice to the accused's ability to make full answer and defence

Ratio Decidendi

The trial judge erred by excluding Cst. Rojas' identification evidence because she failed to identify the evidence, conflated 'undisclosed witness' with undisclosed evidence, and did not conduct the required inquiry into materiality and probable prejudice under O'Connor. The Crown's late notification did not justify the testimonial exclusion remedy; Crown discretion to call witnesses was improperly interfered with absent mala fides. The exclusion is overturned, the acquittal set aside, and a new trial ordered.

Court Disposition

Trial judge's exclusion overturned; acquittal set aside; new trial ordered; respondent's application to adduce fresh evidence refused

Orders

  • Exclude order set aside (trial judge's exclusion of Cst. Rojas' evidence overturned)
  • Verdict of acquittal set aside