A Supreme Court of Newfoundland and Labrador judge has decided to hold off on making a decision in a Charter application before him until an appeal in a related matter is heard.
Justice David Hurley had been scheduled to bring down a decision Monday in the application of Kirby Spence to have the evidence against him in a home invasion case excluded at trial. Spence also wants the statements he gave to police declared involuntary, as well as an order setting aside the general warrants used by police in the search and seizure of items from his home.
Spence and Andre Lecuyer were arrested on Feb. 1, 2014, one day after a man claimed his Humber Road home had been invaded by two men, who tied him up and robbed him of cash and electronics.
Spence is charged with forcible confinement, theft, disguise with intent, break and enter and possession of property obtained by crime.
Lecuyer was charged with break and entry, unlawful confinement, being disguised while intending to commit an indictable offence and theft.
Prior to the start of his trial, Lecuyer made a similar application to the Supreme Court of Newfoundland and Labrador, and in June 2016 the presiding judge ruled in his favour and the charges against him were dismissed. That decision is currently the subject of an appeal by the provincial Crown’s office.
Spence launched his Charter application last fall and the matter has been called several times since. On Sept. 13 Hurley, who is now in St. John’s and appeared by video, said he was not ready to render his decision and set the matter for Monday.
But on Monday said he felt it wasn’t wise to do so until the appeal of the Lecuyer decision is completed.
He suggested setting the matter over to December for status, but Crown attorney Brenda Duffy asked that it be called again sooner and Hurley set it for Nov. 14.
The Newfoundland and Labrador Court of Appeal has yet to set a date for the Lecuyer appeal.
The matter was called at the request of the court in St. John’s on Sept. 18 for an update, at which time an order was issued for Lecuyer to file his materials in response to what has already been filed by the Crown.
