Elisa Frank

The appellant was convicted of two counts of first degree murder following a jury trial in which he was self-represented and frequently excluded from the courtroom due to chronic disruptive conduct.

The trial judge appointed amicus curiae partway through the trial with a limited mandate to cross-examine Crown witnesses but instructed not to advocate on behalf of the defence.

The appellant argued that the delayed and limited appointment created an appearance of unfairness rising to the level of a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.

The Supreme Court affirmed that amicus can perform a broad spectrum of adversarial functions, including closing argument, without essentially becoming defence counsel, provided the appointment respects the accused's right to control their own defence and the amicus's duty of loyalty to the court.

The Court held that no miscarriage of justice arose on the facts, as the trial judge's discretionary decisions were not shown to have created an irregularity of sufficient gravity to shake public confidence in the administration of justice.

The appellant was arrested for possession of a controlled substance after a police officer, responding to a traffic collision, observed him conceal a pill later identified as gabapentin — a prescription drug the officer mistakenly believed was a controlled substance under the CDSA.

The arrest was based on a mistake of law, rendering it unlawful and arbitrary under s. 9 of the Charter, and the searches of the appellant's person and car incident to that arrest breached s. 8.

The majority held that although all impugned evidence was obtained in a manner that triggered s. 24(2), the Charter-infringing conduct was inadvertent and at the less serious end of the culpability scale, the impact on Charter-protected interests was moderate, and society's interest in adjudicating serious firearms and drug offences strongly favoured admission.

The evidence was admitted and the convictions upheld.

Brown J. dissented, finding that admitting the evidence would bring the administration of justice into disrepute.