R. v. Kennedy

R. v. Kennedy

The unintelligible August 6 recording, caused by equipment failure, was not shown to arise from bad faith or unacceptable negligence, other statements existed and the witness remained available for cross-examination, and therefore the loss did not prejudice the accused's section 7 right to a fundamentally fair trial; the stay application was denied.

Citation
2007 NSPC 15
Parties
Crown: Her Majesty the Queen; Accused: Francis Elliot Kennedy
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
23 April 2007
Procedural Posture
Criminal / Application for Stay of Proceedings (pre Trial)
Outcome
Application for stay of proceedings denied.
Legal Topics
Stay of Proceedings, Lost Evidence, Right to Make Full Answer and Defence, Police Negligence, Abuse of Process
Source Language
English
Criminal Law Charter Law Evidence Law Stay of Proceedings Lost Evidence Right to Make Full Answer and Defence Police Negligence Abuse of Process

Case Brief

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Parties

Her Majesty the Queen

Crown

Francis Elliot Kennedy

Accused

Procedural Posture

Criminal / Application for Stay of Proceedings (pre Trial)

Legal Issues

  1. 1 Whether loss of the August 6, 2006 recorded statement infringed the accused's section 7 right to make full answer and defence
  2. 2 Whether a stay under section 24 of the Charter should be granted
  3. 3 Whether police conduct constituted unacceptable negligence or bad faith

Ratio Decidendi

The unintelligible August 6 recording, caused by equipment failure, was not shown to arise from bad faith or unacceptable negligence, other statements existed and the witness remained available for cross-examination, and therefore the loss did not prejudice the accused's section 7 right to a fundamentally fair trial; the stay application was denied.

Court Disposition

Application for stay of proceedings denied.

Orders

  • Application for stay of proceedings denied.