A. Bernstein

The accused, who is deaf, brought a Charter application to exclude firearms and drugs seized from his residence during the execution of a search warrant.

He argued the warrant was based on stale information and that police breached his s. 10(b) right to counsel by failing to accommodate his hearing impairment.

The court found the search warrant was validly issued.

However, the court found a s. 10(b) breach because police failed to provide appropriate technology or assistance to allow the accused to effectively communicate with duty counsel, despite knowing of his disability.

Applying the Grant framework, the court excluded the evidence under s. 24(2) due to the serious, systemic nature of the police failure to accommodate hearing-impaired detainees.

The plaintiffs brought a motion for default judgment against the defendants, who operate a global online lottery business and were noted in default.

The court noted that it was unclear whether the defendants had been served with the motion for default judgment.

Applying Rule 19.02(3) of the Rules of Civil Procedure, the court exercised its discretion to require the plaintiffs to serve the motion record on the defendants by registered mail, giving them 14 days to respond before the motion proceeds in writing.

In this criminal trial ruling on a blended voir dire, the Crown sought to admit evidence from other former students and cross-count evidence as similar fact evidence in relation to allegations of sexualized conduct by a teacher toward adolescent male students.

Applying the governing similar fact framework, the court held that the proposed evidence invited impermissible propensity reasoning, raised substantial prejudice concerns, and risked derailing the trial into a character inquiry.

The court further found an air of reality to collusion or innocent taint among several witnesses and held the Crown failed to establish, on a balance of probabilities, that the evidence was untainted.

The proposed similar fact evidence and count-to-count evidence were excluded, although certain direct evidence relating to the charged events remained admissible.

During a trial for sexual interference involving a child complainant, the accused brought an application to introduce expert opinion evidence from a cognitive psychologist regarding memory, misinformation effects, and the reliability of children's recollections.

The Crown opposed the admission.

The court applied the Mohan and Abbey framework for expert evidence and concluded that the proposed evidence was unnecessary, as the frailties of memory are within the normal experience of a trier of fact.

Furthermore, the court found the expert's report improperly touched upon the complainant's credibility.

The application to admit the expert evidence was dismissed.

The defence brought an application to preclude the Crown from bringing a hearsay application to admit the prior statements of a missing witness.

The defence argued the Crown failed to provide the required 30 days' notice under Rule 30.04 of the Superior Court Criminal Proceedings Rules and failed to promptly disclose that the witness could not be found.

The court found that while the police efforts to locate the witness were lacking and the Crown failed to comply with the notice rules, there was no improper motive.

The court concluded it was in the interests of justice to dispense with compliance with the rules, as the defence suffered no prejudice.

The accused was charged with sexual exploitation and sexual assault arising from alleged misconduct with a former student and volleyball player spanning the complainant’s late teenage years and early adulthood.

The court found the complainant to be credible but concluded the Crown had not proven beyond a reasonable doubt that two alleged pre‑18 incidents constituted intentional touching for a sexual purpose under s. 153 of the Criminal Code.

With respect to later sexual encounters after the complainant turned 18, the court accepted that sexual activity occurred but found a reasonable doubt as to whether a position of trust continued or was abused so as to vitiate consent under s. 273.1(2)(c).

The Crown therefore failed to establish the elements of sexual exploitation or sexual assault beyond a reasonable doubt.

A jury trial arising from the kidnapping, extortion, assault, and unlawful confinement of the complainant.

The court issued written reasons for numerous pre‑trial and mid‑trial rulings including mistrial motions, evidentiary disputes, cell tower evidence admissibility, video‑link testimony under s. 714.2 of the Criminal Code, interpretation issues under s. 14 of the Charter, and jury charge requests.

The court dismissed several defence mistrial applications, permitted certain Crown evidence including cell tower records as factual evidence, allowed video‑link testimony from a witness abroad, and provided jury instructions concerning fabricated statements and the Browne v. Dunn rule.

The jury ultimately convicted two accused and acquitted one.

In a criminal prosecution for kidnapping, extortion, and assault, the court conducted a blended voir dire regarding the admissibility of statements made by the accused to police following a 911 call and police entry into a residence where a bound complainant was discovered.

The accused argued the statements were involuntary and obtained in breach of Charter rights, particularly the right to counsel under s. 10(b).

The court found that one police officer violated the accused’s right to counsel during investigative detention but declined to exclude certain statements after applying the s. 24(2) framework from Grant.

Spontaneous utterances and statements made after proper cautions and waiver of counsel were admitted, while statements allegedly made to another officer in the police cruiser were excluded because the Crown failed to prove voluntariness beyond a reasonable doubt due to unreliable notes and evidentiary inconsistencies.

The accused brought Charter applications seeking exclusion of physical evidence and statements following a police investigation into a reported kidnapping.

Police had entered a residence after a 911 call and later attended a second location linked to a vehicle found at the scene, where the accused was arrested.

The accused argued that seizure and search of pants containing identification and items belonging to the complainant breached s.8 of the Charter, and that statements were obtained in breach of s.10(b).

The court held the seizure of the pants was a lawful search incident to arrest for the purpose of confirming identification and therefore did not violate s.8.

Although one post‑arrest question about identification breached s.10(b), the breach was minor and did not justify exclusion under s.24(2), and all statements were found voluntary.

The accused applied under s. 24(2) of the Charter to exclude evidence obtained after police entered a residence without a warrant following a 911 call reporting a gun and possible emergency.

Police arrived, detained an occupant in the backyard, and conducted a sweep of the home where they discovered a complainant tied to a bed in the basement and seized two envelopes during the search.

The applicants argued the entry and subsequent seizure violated s. 8 of the Charter.

The court held the warrantless entry was justified under the police duty to protect life and safety in response to an emergency 911 call.

The seizure of the envelopes was lawful as plain view evidence discovered while officers were lawfully present in the home.

The accused sought an adjournment of a sexual assault trial to pursue a third party records application for the clinical files of a psychiatrist who had previously testified that the complainant was medically unable to testify due to severe PTSD and suicide risk.

The court considered the balancing of the accused’s right to make full answer and defence against the need for timely trial management.

The defence had possessed an updated psychiatric report for approximately ten months but did not pursue the records until days before the scheduled trial.

The court found the request untimely and characterized the proposed third party records application as a speculative fishing expedition unlikely to meet the threshold of likely relevance under the Criminal Code.

Given the extensive procedural history and prior adjournments, the interests of justice favoured proceeding with the trial.

During a jury trial on kidnapping, extortion, and assault charges, one accused brought a Corbett application to restrict use of his criminal record if he testified.

The court applied the balancing analysis governing admissibility of prior convictions, weighing probative value on credibility against the risk of prejudice through impermissible propensity reasoning.

The court held that the prior conviction for failing to comply with a recognizance bore directly on testimonial credibility and was admissible.

The two uttering threats convictions were excluded because their prejudicial effect outweighed their limited credibility value in the context of the Crown theory at trial.

In a criminal jury trial on kidnapping, extortion, and assault charges, the Crown sought to adduce hearsay statements made by an absent alleged participant through a former friend.

The court held the co-conspirators' exception did not apply because there was no direct or circumstantial evidence that a joint criminal enterprise involving the accused already existed when the statements were made.

The court also rejected alternative hearsay routes based on penal interest, present intention, motive, and credibility corroboration, finding the proposed evidence irrelevant to the live issue of the identity and participation of the accused.

The application was dismissed, subject only to a narrow allowance to refer to the Square One meeting to refresh the witness's memory about a phone number.

In a mid-trial motion, the accused sought to exclude a forensic DNA analysis on the basis that police handling of cloth restraints during an earlier trial created a serious risk of contamination.

The court held that, even accepting the factual allegations regarding handling and continuity, the complaint went to the weight of the DNA evidence rather than its admissibility.

Applying the trial judge’s case-management authority, the court found there was no reasonable likelihood that a voir dire would assist in determining admissibility.

The application was summarily dismissed as unmeritorious and brought too late.

The offender was convicted of three counts of robbery and three counts of using an imitation firearm during a robbery.

The Crown sought to prove a real firearm was used, but the court found it was an imitation firearm.

The court considered aggravating factors, including the vulnerability of the victims and the impact on them, and mitigating factors, including the offender's youth, lack of criminal record, and impending deportation.

The court sentenced the offender to a global term of five years imprisonment, less 28 months credit for pretrial custody.

The offenders were sentenced following a jury trial where Bengy was convicted of second degree murder and Modeste was convicted of manslaughter in relation to the stabbing death of Brandon Ramdeen.

Bengy, who stabbed the unarmed victim while he was overpowered, was sentenced to life imprisonment with no parole eligibility for 11 years.

Modeste, who participated in the group assault but did not stab the victim, was sentenced to 5 years imprisonment, with 49.5 months remaining after credit for pre-trial custody.