William B. Smart

The Crown sought an ex parte order under s. 83.28 of the Criminal Code to compel a Named Person to attend a judicial investigative hearing and answer questions regarding the Air India bombings.

The Named Person challenged the constitutionality of s. 83.28, arguing it violated the right against self-incrimination under s. 7 of the Charter and compromised judicial independence.

The Supreme Court of Canada upheld the provision, finding it procedural in nature, thus applicable retrospectively.

The Court held that s. 83.28 includes adequate safeguards, such as derivative use immunity, which must be extended to extradition and deportation hearings to comply with s. 7.

The Court also found that the provision does not compromise judicial independence, as judges retain their role in protecting the witness's constitutional rights.

The Crown obtained an ex parte order for a judicial investigative hearing under s. 83.28 of the Criminal Code in relation to the Air India bombings.

The application judge ordered the hearing to be held in camera and kept secret.

A newspaper reporter discovered the proceedings and sought access.

The hearing judge dismissed the application for access.

The Supreme Court of Canada allowed the newspaper's appeal in part, holding that the open court principle applies to s. 83.28 hearings.

While the initial ex parte application was properly held in camera, the existence of the order and the constitutional challenge should have been public.

The investigative hearing itself must be presumptively open, subject to the Dagenais/Mentuck test for publication bans or in camera orders.

The respondents were convicted of manslaughter and aggravated assault following a drive-by shooting, based primarily on eyewitness identification.

The Court of Appeal quashed the convictions, finding the trial judge's reasons inadequate for failing to sufficiently analyze the frailties of the identification evidence.

The Supreme Court of Canada allowed the Crown's appeal and restored the convictions, holding that the trial judge's reasons met the functional test set out in Sheppard, as they clearly explained the basis for accepting the identification evidence and permitted meaningful appellate review.

The Crown appealed as of right from a decision of the British Columbia Court of Appeal, which had set aside the accused's conviction for sexually assaulting the complainant and entered an acquittal.

The Supreme Court of Canada dismissed the appeal, finding no reason to interfere with the majority judgment of the Court of Appeal.