Brock Martland

The Crown appealed a Court of Appeal decision restoring stay applications for abuse of process that a trial judge had summarily dismissed following a Vukelich hearing.

The accused had alleged systemic police misconduct and inhumane conditions of confinement prejudicing their right to a fair trial.

The Supreme Court of Canada dismissed the Crown's appeal and held that the correct threshold for summary dismissal of applications in the criminal law context is whether the application is manifestly frivolous — a rigorous standard requiring that the frivolous nature of the application be obvious on the face of the record.

The trial judge erred by failing to assume the truth of the alleged facts and inferences and by applying an insufficiently rigorous threshold that slid towards the merits of the underlying applications.

The accused was convicted of second degree murder following a third trial.

The Court of Appeal ordered a new trial, finding the trial judge erred by failing to provide a limiting instruction on the use of prior consistent statements admitted during the re-examination of a key Crown witness.

The Supreme Court of Canada allowed the Crown's appeal and restored the conviction.

The Court held that while the prior consistent statements were improperly admitted, the error was harmless and the curative proviso applied.

Furthermore, because the statements had no probative value and did not bolster the witness's reliability, no limiting instruction was required.

The Supreme Court of Canada considered whether general deterrence is a principle of sentencing under the Youth Criminal Justice Act (YCJA).

The Court held that the YCJA introduced a new sentencing regime that deliberately excluded general deterrence as a factor in youth sentencing.

The Court also held that section 42(2)(o) of the YCJA does not require a sentencing judge to impose at least two-thirds of a sentence in custody and one-third under supervision, granting the judge discretion to determine the appropriate length of the custody and supervision portions.

Both appeals were dismissed.

The Crown obtained an ex parte order for a judicial investigative hearing under s. 83.28 of the Criminal Code in relation to the Air India bombings.

The application judge ordered the hearing to be held in camera and kept secret.

A newspaper reporter discovered the proceedings and sought access.

The hearing judge dismissed the application for access.

The Supreme Court of Canada allowed the newspaper's appeal in part, holding that the open court principle applies to s. 83.28 hearings.

While the initial ex parte application was properly held in camera, the existence of the order and the constitutional challenge should have been public.

The investigative hearing itself must be presumptively open, subject to the Dagenais/Mentuck test for publication bans or in camera orders.

The Crown sought an ex parte order under s. 83.28 of the Criminal Code to compel a Named Person to attend a judicial investigative hearing and answer questions regarding the Air India bombings.

The Named Person challenged the constitutionality of s. 83.28, arguing it violated the right against self-incrimination under s. 7 of the Charter and compromised judicial independence.

The Supreme Court of Canada upheld the provision, finding it procedural in nature, thus applicable retrospectively.

The Court held that s. 83.28 includes adequate safeguards, such as derivative use immunity, which must be extended to extradition and deportation hearings to comply with s. 7.

The Court also found that the provision does not compromise judicial independence, as judges retain their role in protecting the witness's constitutional rights.