Jason Miller

This decision addresses a motion for directions regarding the transportation and housing of an in-custody accused, Matthew McQuarrie, during his murder trial in Owen Sound, Ontario.

The court details the significant logistical and fairness challenges posed by the closure of the local jail, resulting in daily lengthy and inhumane commutes from the Central North Correctional Centre.

The ruling describes the evidence on transportation, alternate housing, and access to disclosure, and ultimately orders exceptional accommodations to ensure the accused’s right to a fair trial, including direct transport, access to disclosure, and use of technology.

Matthew McQuarrie, charged with first-degree murder, discharged his third lawyer and intended to self-represent.

The Crown applied for orders appointing amicus curiae and counsel under s. 486.3 of the Criminal Code to cross-examine the deceased's parents.

The court granted both applications, appointing the accused's former counsel, Anthony Bryant, as amicus with an expanded adversarial mandate, and counsel under s. 486.3 for specific cross-examinations, with the possibility of expansion.

The decision addressed the suitability of former counsel as amicus and the scope of their duties, emphasizing the need to protect the court process and ensure trial fairness given the accused's behaviour and the complexity of the case, while avoiding trial adjournment.

The applicant sought a bail review under s. 520 of the Criminal Code, challenging a prior detention order on the secondary ground.

The applicant proposed a revised release plan, including a full-time surety due to COVID-19 related layoff and a different electronic monitoring system, and argued that the pandemic constituted a material change in circumstances.

The court found no error in the original decision and determined that the proposed plan, even with COVID-19 considerations, did not amount to a material change in circumstances sufficient to warrant release, particularly given the applicant's extensive criminal record and history of breaching court orders.

The application was dismissed.

The applicant, facing trial for sexual assault, brought a pre-trial motion seeking to exercise peremptory challenges during jury selection, despite their repeal by Bill C-75.

The applicant argued that a previous Superior Court decision declaring the repeal unconstitutional was binding, or alternatively, that the repeal operated prospectively.

The court dismissed the application, finding that coordinate court decisions are not binding, the previous decision was plainly wrong, and the procedural amendments operate retrospectively.

The new jury selection provisions apply to the applicant's trial.

The Crown brought applications to quash preliminary inquiry requests made by defendants before new provisions limiting preliminary inquiries came into effect on September 19, 2019.

The new provisions restrict preliminary inquiries to cases where the maximum penalty is at least 14 years imprisonment.

The defendants faced indictable offences with maximum penalties less than 14 years.

The court considered whether the new section 535 of the Criminal Code applied retrospectively to eliminate jurisdiction over previously valid preliminary inquiry requests.

The Crown argued the amendments were purely procedural and applied retrospectively.

The defence argued the court retained jurisdiction over validly requested inquiries.

The court found itself bound by a Superior Court decision granting the Crown's certiorari application in a related case and allowed the Crown's applications, finding the defendants' preliminary inquiry requests to be of no force and effect.

The applicants, charged with manslaughter and second-degree murder, brought a pre-trial application to determine whether the amendments in Bill C-75 eliminating peremptory challenges (repeal of s. 634 of the Criminal Code) have retrospective effect.

The court held that the availability of peremptory challenges is a procedural matter, not a substantive right.

Therefore, the repeal applies retrospectively to all matters before the court as of the coming into force date, September 19, 2019.

During a jury trial for importing cocaine, the Crown sought to introduce secondary evidence of lost computer records tracking a cargo container.

The original records had been lost by police and purged by the company.

The court allowed the witness to testify to his recollection of the records under the best evidence rule, finding the loss was in good faith.

However, the court refused to allow a police officer to testify about what the witness told him in 2007, ruling that the defence's cross-examination did not amount to an allegation of recent fabrication that would justify admitting a prior consistent statement.

The accused applied to quash an indictment charging two counts of disobeying a court order under s. 127(1) of the Criminal Code for allegedly breaching an interim publication ban relating to undercover police officers at a preliminary inquiry.

The defence argued that the Crown lacked jurisdiction to prosecute under s. 127 because breaches of publication bans under s. 486.5 must be prosecuted under the specific enforcement provision in s. 486.6 by summary conviction.

The court held that although the order referenced multiple sources of authority, the conduct alleged — publication of identifying information — fell squarely within the specific statutory scheme governing publication bans.

Applying principles of statutory interpretation that specific provisions prevail over general ones, the court concluded that the alleged conduct could only be prosecuted under s. 486.6 and not by indictment under s. 127.

The indictment was therefore quashed.