Kathy Perchenok

The appellants, charged with drug offences, sought disclosure of police policy directives regarding confidential informants during their preliminary inquiry.

After the Crown refused disclosure, the preliminary inquiry judge issued subpoenas duces tecum to the police chiefs.

A Superior Court judge quashed the subpoenas, finding the preliminary inquiry judge lacked jurisdiction to order what amounted to third-party disclosure.

The appellants appealed.

Although the appeal was moot because the appellants had since pleaded guilty, the Court of Appeal exercised its discretion to hear it.

The Court dismissed the appeal, holding that a preliminary inquiry judge cannot use a subpoena duces tecum to circumvent the jurisdictional limits on ordering production of third-party records, which must be sought before a trial judge under the O'Connor regime.

The accused was charged under s. 243 of the Criminal Code with disposing of the dead body of a child with intent to conceal its delivery.

The remains of a 36-week fetus were found in a bag on a balcony.

The forensic pathologist could not exclude the possibility that the fetus died in utero due to a self-induced abortion.

Applying the Supreme Court of Canada's interpretation of s. 243 in a previous appeal of this case, the court found that the Crown could not prove beyond a reasonable doubt that the child was likely to have been born alive, as the law does not apply to miscarriages or abortions.

The accused was acquitted.