Alexandra Rowell

This ruling addresses the continuation of an ongoing jury trial for second-degree murder amidst the rapid spread of the Omicron variant of COVID-19.

Despite a joint submission from the Crown and defence to continue the trial, the court exercised its discretion to adjourn the proceedings.

The judge balanced the accused's right to an expeditious and fair trial against the paramount health and safety concerns for all courtroom participants, including jurors, counsel, staff, and the accused's family.

The court took judicial notice of the Omicron variant's significantly increased transmissibility and its impact on vaccine effectiveness, noting the high likelihood of trial disruptions due to exposures or infections.

The trial was adjourned until February 7, 2022, with a reassessment meeting scheduled for January 31, 2022.

The accused, charged with first-degree murder, brought a Garofoli application challenging a production order for his cell phone records, arguing the Information to Obtain (ITO) contained significant errors and omissions violating section 8 of the Charter.

The court found that while the affiant made several errors due to inexperience and negligence, there was no intent to mislead.

After excising the errors and amplifying the ITO, sufficient reliable evidence remained to justify the production order.

The court concluded there was no section 8 violation and noted that, even if a breach had occurred, the evidence would be admitted under section 24(2) of the Charter.

In a pre-trial motion for a first-degree murder case, the Crown sought to admit several pieces of evidence.

The court admitted antemortem statements of the deceased and evidence that one of the accused was a marijuana dealer, finding the latter's probative value in establishing narrative and identity outweighed its prejudicial effect.

However, the court excluded rap lyrics found on the other accused's phone, ruling that their limited probative value as circumstantial evidence of participation was outweighed by significant moral and reasoning prejudice.

The accused was charged with operating a motor vehicle while impaired by alcohol and with having a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The trial judge found that while the police officer breached the accused's section 10(a) Charter rights by failing to promptly inform him that the nature of his detention had changed from a speeding investigation to an impaired driving investigation, the officer had reasonable and probable grounds for the breath demand and did not breach section 8 rights.

The trial judge excluded statements made by the accused at the roadside but admitted the breath test results under section 24(2) analysis.

The accused was convicted on both counts.

The accused brought a motion to stay a charge of Over 80 based on unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The accused was arrested on April 2, 2016, with trial scheduled for November 16, 2017, representing 19.5 months of delay.

The Crown argued that defence delay should be deducted, resulting in a net delay of 16 months, below the 18-month ceiling established in R. v. Jordan.

The defence contended the net delay was 18.5 months.

The court found the net delay was 18.5 months and that the Crown failed to establish an exceptional circumstance to rebut the presumption of unreasonableness.

The charge was stayed.

The appellant, Mark Broxterman, appealed his conviction for operating a motor vehicle with more than 80 milligrams of alcohol in 100 milliliters of blood.

The appeal was based on three grounds: the trial judge erred in finding reasonable and probable grounds for arrest, misapprehended the evidence regarding the approved screening device (ASD) result, and rendered an unsafe verdict due to comments about writing two judgments.

The appeal court dismissed all grounds, affirming the trial judge's findings on reasonable grounds, the reliability of the ASD result based on expert evidence, and the appropriateness of the trial judge's decision-making process.