Justin Tremblay

The defendant moved to stay a defamation action, arguing it was based on evidence obtained in violation of the deemed undertaking rule under Rule 30.1.01.

The evidence in question was a surreptitious recording voluntarily attached as an exhibit to an affidavit in a separate family litigation proceeding.

The court dismissed the motion, finding that the deemed undertaking rule applies only to evidence obtained through compulsory discovery mechanisms, not to evidence voluntarily put forward in an affidavit.

The Crown appealed from a stay of proceedings granted on the basis of unreasonable delay under s. 11(b) of the Charter in circumstances where the accused raised first-trial delay only after a new trial was ordered.

The Supreme Court held that after a new trial is ordered, the delay clock resets to zero and an accused cannot raise first-trial delay in a s. 11(b) motion brought during the retrial, as this would be contrary to the duty of all parties to act proactively under the Jordan framework.

The Court further held that the presumptive ceilings established in Jordan apply to retrial delay without modification.

Applying those principles, the retrial delay of 10 months and 5 days fell well below the 30-month presumptive ceiling and was reasonable in the circumstances.

The accused was arrested on charges of murder and arson and spoke with counsel by telephone at the police station.

The lawyer indicated he was coming to meet the accused in person; the officer's ambiguous response led both the lawyer and the accused to believe the in-person meeting would occur.

Police subsequently refused to allow counsel to meet the accused and conducted an interrogation during which the accused made an incriminating statement while repeatedly expressing confusion about his lawyer's absence.

The SCC held that, in these unique circumstances, the police were required to provide a further opportunity to consult counsel before questioning, as two acts by the officer had the combined effect of undermining the legal advice received, triggering a renewed right to counsel under s. 10(b) of the Charter.

The appeal was dismissed and the exclusion of the statement under s. 24(2) was upheld.

The Court dismissed the Crown’s appeal and held that certiorari in criminal matters is available to parties only for jurisdictional error by a provincial court judge.

It rejected broader approaches permitting review of errors of law on the face of the record, emphasizing the prohibition on interlocutory criminal appeals and the need to avoid delay and fragmentation.

The provincial court judge’s order involved legal error, not jurisdictional error, so certiorari could not issue.

In a criminal appeal as of right, the Court addressed whether an erroneous jury instruction on fabrication of alibi and evidentiary rulings required appellate intervention.

The Court confirmed that an alibi-fabrication instruction must be limited to an inference of consciousness of guilt and requires independent evidence linking the accused to deliberate fabrication.

Although the instruction was erroneous, the Court held the evidence against the accused was overwhelming.

Applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, the convictions for first degree murder and attempted murder were upheld.