The accused brought a pre-trial application seeking to declare s. 255(3.2) of the Criminal Code unconstitutional under ss. 7, 8, and 11 of the Canadian Charter of Rights and Freedoms.
The issue before the court was whether the constitutional challenge should be decided before the commencement of the jury trial or deferred until after trial.
The court held that constitutional issues should not be determined in a factual vacuum and should only be decided if necessary to resolve the matter.
Because the accused might not ultimately be convicted of the impugned offence, the court concluded that a full factual record following trial was required.
The application to determine the constitutional issue before trial was therefore denied.
