Justice David Hurley has agreed to give his decision in the case of Kirby Spence, despite earlier saying he wanted to first wait for the outcome of an appeal in the case of a second man originally charged in the same crime.
Spence and Andre Lecuyer were arrested following an alleged violent home invasion in Corner Brook in early 2014. They were each charged with break and entry, forcible confinement, theft and with being disguised while intending to commit an indictable offence.
The victim claimed he was bound and robbed of cash and electronics.
Spence was also charged with possession of property obtained by crime.
Prior to going to trial, Lecuyer successfully argued a Charter of Rights and Freedoms application which led to the dismissal of charges against him in June 2016 because certain evidence could not be included at trial.
The Crown is currently appealing that decision.
Spence has argued a similar application and is awaiting Hurley’s decision on it, but the judge had indicated he wanted to hear the ruling on Lecuyer’s appeal first.
Spence’s case was called in court in Corner Brook Tuesday morning. Crown attorney Trina Simms indicated that no hearing date has been set to hear Lecuyer’s appeal yet. Further, she told Hurley the Crown doesn’t believe the decision in Spence’s case hinges on the Lecuyer decision because, although there were some common issues, there was enough of a difference between the two arguments.
While it has not been confirmed in open court yet, Simms also told Hurley that it has been indicated to her via the provincial Crown’s office that it is likely Lecuyer’s own lawyer may be conceding that a new trial is warranted in Lecuyer’s case.
Gary Kearney, who represented Spence in court Tuesday, said that, although a decision in the Lecuyer matter might be somewhat helpful, it will soon be nearly four years since the alleged crimes. He added it could possibly be some time in 2019 before the Lecuyer matter is heard and decided on and his client’s matters advanced in the court system.
Hurley agreed he would give his decision and indicated he could do so in December, but Kearney said he was going to be unavailable for the last two weeks of the month.
Hurley will render the decision Jan. 4.
