Cat Mercer

The accused, charged with sexual assault, applied for certiorari and mandamus to quash a trial judge's decision to defer hearing a constitutional challenge and stay of proceedings application until after the trial on the merits.

The accused argued that a police media release violated their Charter rights and sought a stay.

The Superior Court dismissed the application, finding the trial judge committed no jurisdictional error in exercising his discretion to manage court resources and defer the constitutional issue, noting that an acquittal would render the constitutional issues moot for the purpose of the criminal trial.

The Crown sought to introduce historical text messages sent by the accused to his wife, which were obtained by police pursuant to a valid general warrant.

The accused sought to exclude the messages on the basis of spousal privilege under s. 4(3) of the Canada Evidence Act and s. 189(6) of the Criminal Code.

The court dismissed the application, holding that spousal privilege is a testimonial privilege that protects a spouse from being compelled to testify, but does not render the communications themselves inadmissible when independently and lawfully obtained by police.