A. Leitch

This decision contains pre-charge conference rulings in a first-degree murder trial involving two accused.

The court addressed two main issues: the Crown's request to include constructive first-degree murder under s. 231(5)(e) of the Criminal Code as a route of liability, and Mr. Smich's request for a Vetrovec warning regarding certain Crown witnesses.

The court denied the Crown's request for constructive murder, finding no air of reality to unlawful confinement distinct from the killing.

It also denied Mr. Smich's request for a Vetrovec warning for the specified witnesses, concluding that the jury would be capable of assessing their credibility with general instructions.

However, the court granted Mr. Millard's counsel's request for a caution regarding Mr. Smich's testimony where it implicates Mr. Millard.

The Crown applied mid-trial to admit text messages between the two accused, previously ruled inadmissible, arguing that defence cross-examination had "opened the door" by asserting lack of planning, good character, or lack of knowledge of the "Eliminator." The accused opposed, citing prejudice and lack of material change in circumstances.

The court denied the Crown's application, finding no material change in circumstances to warrant reconsideration of the prior ruling, and that the probative value did not outweigh the significant prejudice, especially given the potential for references to another alleged murder.

Limited exceptions were made for cross-examination if the accused testified on specific points.

The Crown sought a mid-trial order for the jury to conduct a view of multiple crime scenes and an incinerator device in a murder trial.

The accused opposed, arguing prejudice due to late timing, potential for misleading the jury regarding the theoretical route, and inflammatory impact of the incinerator.

The court dismissed the application, finding the Crown failed to demonstrate a "very real and demonstrable advantage" that could not be achieved through existing evidence, and that the late stage of the trial exacerbated the risk of prejudice and overemphasis.

Mark Smich, a co-accused in a joint trial, brought an application to introduce evidence of Dellen Millard's general propensity or bad character, arguing that Millard's counsel had put Millard's character in issue during cross-examination of a witness.

Millard and the Crown opposed the application.

The court found that the cross-examination, which elicited evidence about Smich's violent temperament, anger issues, and control over others, including rap lyrics, was within the scope of a Pollock and Morrisson application.

This evidence was deemed probative to specific issues, such as Smich's ability to intimidate and weapon ownership, relevant to Millard's antagonistic defence.

The court concluded that Millard's general character had not been put in issue by these questions and that there was no imbalance requiring rebuttal.

The application was dismissed.

The applicant, Mark Smich, sought a mistrial during a joint murder trial, alleging that co-accused Dellen Millard's counsel improperly introduced highly prejudicial propensity and bad character evidence, including violent rap lyrics, beyond the scope of a Pollock and Morrisson application.

The Crown and co-accused Millard opposed the application, arguing the evidence was within the scope of cross-examination for antagonistic defenses and that timely limiting instructions had been provided.

The court dismissed the application, finding that while one specific rap lyric reference exceeded the permitted scope, it was probative to a live issue (firearm ownership) and that any potential prejudice could be cured by jury instructions, not warranting the "last resort" remedy of a mistrial.

During a joint trial, counsel for one of the co-accused sought directions on the appropriate timing to introduce propensity or bad character evidence against the other co-accused through cross-examination of a Crown witness (a 'Pollock & Morrisson' application).

The court ruled that to maintain full answer and defence and procedural fairness, notice of such an application must be provided at the conclusion of the Crown's examination-in-chief, prior to the commencement of cross-examination by the co-accused's counsel.

During a criminal jury trial, the accused objected to the Crown's expert witnesses using PowerPoint presentations that included conclusions and opinions, arguing they would unfairly emphasize the Crown's case and act as written reports.

The trial judge ruled that the PowerPoint presentations were admissible as exhibits to assist the jury in understanding complex technical evidence, provided that certain bald conclusions or opinions were redacted.

The judge found that such demonstrative aids are reasonably necessary in modern trials to enhance juror comprehension, subject to proper limiting instructions.

During a murder trial, the accused applied for a mistrial after a Crown witness provided undisclosed opinion evidence suggesting an incinerator had been used more than once.

The accused argued this prejudiced them by implying involvement in other uncharged murders.

The trial judge dismissed the application, finding that a mistrial is a remedy of last resort and that a sharp instruction to the jury to disregard the unfounded opinion evidence was sufficient to cure any potential prejudice.

During a murder trial, the Crown brought a motion arguing that one of the co-accused had placed his good character in issue through the cross-examination of a Crown witness.

The co-accused's counsel had elicited testimony from the witness that the co-accused seemed like a 'nice fellow' who could not be imagined to be involved in the victim's disappearance.

The court dismissed the motion, finding that the cross-examination was intended to repudiate the Crown's theory of the case and attack the reliability of the witness's testimony, rather than to introduce evidence of general reputation or good character.

The accused applied to quash search warrants issued on May 11 and May 12, 2013 and to exclude evidence under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

The court reviewed whether the Information to Obtain provided reasonable grounds and whether police conduct during searches of multiple properties was constitutional.

The court found that a warrantless search of the accused’s aircraft hangar violated s. 8 and that evidence seized from the hangar should be excluded.

However, the court upheld the validity of the search of the accused’s residence and admitted evidence relating to an incineration device and associated forensic evidence discovered on rural property.

Applying the Grant framework, the court concluded that admission of the latter evidence would not bring the administration of justice into disrepute.

The accused brought an application under s. 591(3) of the Criminal Code seeking severance from a co-accused in a joint first-degree murder prosecution.

The moving party argued that the co‑accused intended to advance a cut‑throat defence, introduce bad character and propensity evidence, rely on out‑of‑court statements implicating the moving party, and conduct aggressive cross‑examination, all of which would create overwhelming prejudice.

The Crown and co‑accused opposed the motion, arguing that limiting instructions could address any prejudice and that joint trials are strongly preferred where accused are alleged to have acted in concert.

The court held that the applicant had not demonstrated that a joint trial would cause injustice or undermine the right to a fair trial.

Potential prejudice could be mitigated through evidentiary rulings and careful jury instructions, and policy considerations strongly favoured a joint trial.

The Crown brought an application to introduce evidence of prior discreditable conduct against the co-accused in a first-degree murder trial.

The Crown sought to admit evidence of the co-accused's prior criminal collaboration, access to firearms, and use of an animal incinerator to establish their relationship, motive, and the actus reus of the offence.

The court applied the test for admitting discreditable conduct, balancing probative value against moral and reasoning prejudice.

The court granted the application in part, finding that certain evidence was highly probative to understanding the co-accused's relationship and rebutting anticipated defences, while excluding other evidence that posed an insurmountable risk of propensity reasoning.

The accused brought an application to exclude statements made to police and observations obtained during a police visit to his aviation business hangar during a missing-person investigation.

The court considered alleged breaches of ss. 7, 8, and 10 of the Canadian Charter of Rights and Freedoms arising from police questioning and a warrantless walk-through of the hangar.

The court held that the accused was not detained while speaking with police in the public reception area and that statements made there were admissible.

However, once police moved into the secure hangar area, the accused was psychologically detained and the police conducted a warrantless search without valid consent.

The resulting observations and related utterances were obtained in breach of the accused’s Charter rights and were excluded under s. 24(2).

The accused applied to exclude cellular phone subscriber and tower location records obtained by police from a telecommunications provider through an emergency disclosure request without a warrant.

The court held that police had sufficient grounds earlier in the day to obtain a production order and that exigent circumstances under s. 487.11 of the Criminal Code were not established, resulting in a breach of s. 8 of the Charter.

However, applying the framework in Grant, the breach was characterized as technical and conducted in good faith, with minimal impact on the accused’s privacy interests given the narrow scope of the records sought.

Considering the seriousness of the offence and the reliability and importance of the evidence, the court concluded that exclusion would bring the administration of justice into greater disrepute.

The cellular records were therefore admitted pursuant to s. 24(2) of the Charter.

A media coalition applied for an order allowing the publication of certain pre-trial motions in a high-profile first-degree murder case, arguing that the statutory publication ban under s. 648(1) of the Criminal Code should not apply to all pre-trial motions.

The Crown and the accused opposed the application, arguing that s. 648(1) provides a blanket statutory ban on all reporting of any information concerning pre-trial applications brought before the designated trial judge.

The court dismissed the media's application, holding that the statutory ban under s. 648(1) is mandatory and applies to all pre-trial motions adjudicated by the trial judge, whether litigated before or after a jury is selected.

The accused applied under s. 599(1) of the Criminal Code for a change of venue for a first‑degree murder trial, arguing that extensive pre‑trial publicity and community response in Hamilton had irreparably tainted the local jury pool.

The Crown and the co‑accused opposed the motion, submitting that the presumption favouring trial in the territorial jurisdiction of the alleged offence had not been displaced and that standard jury selection safeguards would ensure fairness.

The court reviewed the nature, extent, and timing of media coverage, including internet and social media discussion, and found that most reporting was factual and not highly prejudicial.

It held that the applicant failed to demonstrate a fair and reasonable probability of prejudice that could not be addressed through the jury selection process.

The motion for a change of venue was dismissed.

The appellant pleaded guilty to possession of marijuana and two counts of breach of recognizance.

The sentencing judge rejected a joint submission and imposed a sentence of six months' imprisonment in addition to 90 days of pre-trial custody.

The appellant appealed the sentence and applied for bail pending appeal.

The Superior Court of Justice denied the application, finding that while the appeal was not frivolous, the argument that the sentence was manifestly unfit was not strong given the appellant's extensive criminal record.

Bail pending appeal was denied and the appeal was expedited.