Lawyers for the teenager accused in a stabbing incident at Charles P. Allen High School in Bedford, N.S., are seeking a judicial stay of proceedings in his case, arguing the youth's Charter rights were breached.
The now 16-year-old's legal team made their arguments in a pre-trial voir dire at youth court in Halifax before Judge Elizabeth Buckle on Tuesday and Wednesday.
The voir dire hearing was held so the judge can rule on points raised by the defence about the alleged conduct of police and a sheriff following the arrest of the teen in March 2023.
Two staff members of the school were injured in the incident as well as the teen himself, who is scheduled to go to trial to answer 11 charges, including two of attempted murder, in March.
The defence is calling into question the initial actions by police who captured audio recordings of the boy after his arrest.
According to testimony from police and health-care professionals, these recordings included interactions in the ambulance, on his way to the IWK Health Centre, where he was being taken for the treatment of his injury, and continued both on his way to surgery in the trauma room and then when he came out of surgery and was still under anesthetic in a recovery room.
One of the officers who did the recording told the hearing he advised the teen he was being recorded and he did not object.
Crown lawyers Jamie Van Wart and Terry Nickerson said they were not planning to rely on the recordings so their use at the accused's trial is not at issue.
The teen's legal team, Paul Sheppard and Anna Mancini, are framing the recordings as an unlawful search contrary to Canada's Charter of Rights and Freedoms. They also said they have concerns the recordings contain private medical information about the accused.
The other Charter breach they are alleging relates to the actions of a sheriff whose photo of the accused ended up on social media, according to an agreed statement of facts.
The photo was of a security monitor screen showing the teen in a courthouse cell talking to his lawyer after his arrest.
The defence described the sheriff's actions as an abuse of process and breach of the accused's Charter rights, considering his identity is protected by the Youth Criminal Justice Act.
IWK staff uncomfortable with recordings
A nurse who treated the accused after his surgery gave testimony after being called as a witness Tuesday.
Amy Ward said when she noticed an officer was recording in the patient's room, she asked management what was happening because she had not been told.
"I did not like the fact I was being recorded," Ward told the court. "Patient confidentiality is utmost. The recording was of an unconscious person and the medical care he received."
She said she did not know why police were present and did not consider it her business to ask.
The Crown suggested to her she was aware the police were gathering information about an incident and would want to ask the teenager questions when he woke up.
Information could have been written down by officers, she responded, noting people can say strange things when they are waking up from anesthetic.
"Some patients experience delirium during this process," she said in an affidavit.
The court heard after IWK managers got involved, the officer who was recording agreed to pause whenever health-care providers entered the room.
Police defend making the recordings
However, police officers who gave evidence in the voir dire said there was nothing unusual about recording audio of suspects.
"I don't recall a time we didn't do it," said Halifax Regional Police Staff Sgt. Chris Marinelli, who told the hearing he instructed officers to make the recordings.
He said that was to capture the most accurate documentation, in part for the protection of the youth.
Police Const. Beau Wassen confirmed he received those directions in person.
He said he carefully read Charter rights to the teen who he said told him he understood them.
He told court he used a digital audio recorder placed in his vest that displays a red light when on, showing he was not hiding anything.
The general counsel for the IWK, Jennifer Feron, shared her concerns about the recordings police made when she took the stand to testify on Wednesday.
That policy is now under review, Feron said, "to address audio recordings."
Lawyers for the Crown and defence will make their final submissions in the pre-trial motion next week.
It will then be up to the judge to decide whether any Charter breaches occurred.
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