R. v. Henneberry

R. v. Henneberry

The Crown motion to summarily dismiss the Defence Charter motion was denied. The court found the Defence Charter arguments had an air of reality arising from trial evidence, accepted that lateness caused prejudice to the Crown but concluded that prejudice could be cured by adjournment and by permitting re-opening of the cases; therefore summary dismissal would be an unfair exercise of judicial discretion and the Charter motion must be permitted to proceed.

Citation
2015 NSPC 96
Parties
Crown/prosecutor: Her Majesty the Queen; Accused/defendant: Tyler Henneberry
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
6 July 2015
Procedural Posture
Criminal — Fisheries Act Offence / Crown Motion to Summarily Dismiss Defence Charter Motion (post Trial, Pre Determination on Charter Application)
Outcome
Crown motion for summary dismissal denied; Defence Charter motion not summarily dismissed and permitted to proceed (subject to adjournment and possible re-opening of the Crown and Defence cases to cure prejudice)
Legal Topics
Charter Motion, Summary Dismissal, Notice Requirements, Vagueness Challenge, Charging Discretion, Trial Procedure, Adjournment, Reopening of Cases
Source Language
English
Criminal Law Constitutional Law Administrative Law Fisheries Law Evidence and Procedure Charter Motion Summary Dismissal Notice Requirements +5 more

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Parties

Her Majesty the Queen

Crown/prosecutor

Tyler Henneberry

Accused/defendant

Procedural Posture

Criminal — Fisheries Act Offence / Crown Motion to Summarily Dismiss Defence Charter Motion (post Trial, Pre Determination on Charter Application)

Legal Issues

  1. 1 Whether a Defence Charter motion filed late can be summarily dismissed without a hearing
  2. 2 Whether the Defence motion has an 'air of reality' sufficient to require a hearing
  3. 3 Whether the Crown suffered prejudice from late notice and whether that prejudice can be cured

Ratio Decidendi

The Crown motion to summarily dismiss the Defence Charter motion was denied. The court found the Defence Charter arguments had an air of reality arising from trial evidence, accepted that lateness caused prejudice to the Crown but concluded that prejudice could be cured by adjournment and by permitting re-opening of the cases; therefore summary dismissal would be an unfair exercise of judicial discretion and the Charter motion must be permitted to proceed.

Court Disposition

Crown motion for summary dismissal denied; Defence Charter motion not summarily dismissed and permitted to proceed (subject to adjournment and possible re-opening of the Crown and Defence cases to cure prejudice)

Orders

  • Crown motion for summary dismissal denied.
  • Charter motion to proceed; parties may seek adjournment and permission to re-open their cases to address prejudice caused by late notice.