Yes, a JP can consider any motion at any time during a trial, I agree. However, in practice, and especially for an 11(b) motion, courts schedule motions in one court and trials in another and rarely, very rarely in one proceeding. IF that is the case, both sides will know that well ahead of time, as scheduling is done ahead of time, and notice is given to both sides, so they will know that the trial will follow the motion and can have their witnesses there. There are no surprises, there is no trial by ambush, notice WILL be given to both sides how the hearings will proceed. In the vast majority of HTA cases, that's the procedure, all counsel know that, therefore there is no need for the Crown to have it's cop-witness, or the defendant to be present if represented by an agent,sitting in court 'in case' trial follows immediately.ticketcombat wrote: ↑OK first off I want to say I'm a newbie here AND I have a lot of respect for your (award winning) posts. So with that in mind, here are a few things I want to point out. A justice can consider a constitutional motion before, during or after a trial. Oral arguments are also heard (Crown & defendant/rep). Example: R. v. Araujo, 2008 ONCJ 507 The cop should be nearby in case the motion is heard after trial instead of pre-trial. He would have to testify at some point or the Crown would have to seek an adjournment or withdraw. No cop, no case.
It goes without saying that 'oral arguments are heard' during a motion...at least I thought it went without saying. I've yet to see a hearing where everyone sits mute. But those oral arguments are made by counsel based on affidavit evidence, not oral testimony (of which there is none in motions court). Apparently I wasn't clear and made the assumption that that was self-explanatory when I said 'argued by lawyers (or agents) only based on affidavit evidence of the witnesses' (notice the word 'argued').
BTW, welcome newbie....lol...your username is perfect for this forum, I guess we'll be seeing you around more often?