Andrew J. Goodman

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 plaintiff, a 68-year-old captive sales agent, brought an action for constructive dismissal after his employer proposed changes to his commission structure and requested he sign an updated employment agreement.

The plaintiff resigned, claiming a toxic work environment and a fundamental change to his employment terms, despite the employer offering 18 months of working notice on his existing terms.

The court dismissed the action, finding no constructive dismissal as the employer's conduct did not amount to a repudiation of the contract.

Furthermore, the court held that even if constructive dismissal had occurred, the plaintiff failed to mitigate his damages by refusing the reasonable opportunity to work out the notice period.

The applicants, facing three separate first-degree murder trials, sought an unprecedented publication ban on all evidence to be adduced at their first trial (the Bosma murder) until the completion of their subsequent trials, arguing that pre-trial publicity would prejudice future juries.

Alternatively, they sought to extend the statutory publication ban on pre-trial motions.

The court dismissed the request for a blanket ban on trial evidence, finding that the applicants failed to demonstrate a serious risk to trial fairness and that jury safeguards would be sufficient.

However, the court granted the alternative request, extending the publication ban on pre-trial motions until the conclusion of the subsequent Babcock trial due to the high risk of prejudice from overlapping inadmissible evidence.

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 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 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 evidence obtained through a telewarrant authorizing the search of his vehicle, arguing the police improperly relied on the telewarrant procedure contrary to s. 487.1 of the Criminal Code and thereby violated s. 8 of the Charter.

The accused submitted the Information to Obtain did not adequately establish impracticability for personal attendance before a justice and that the delay between seizure, issuance, and execution of the warrant undermined the justification for a telewarrant.

The court held that the impracticability threshold under s. 487.1 is relatively low and that the circumstances of a complex and urgent missing person investigation with limited resources justified use of the telewarrant procedure.

The court concluded that the issuing justice had sufficient grounds to issue the telewarrant and that no Charter breach occurred.

In any event, the court held the evidence would be admissible under s. 24(2) of the Charter.

The applicant, charged with first-degree murder, brought an omnibus application to exclude evidence under the Charter.

He challenged the validity and execution of a search warrant at his residence, the lawfulness and manner of his arrest, and the admissibility of a photo line-up identification.

The court found that the Information to Obtain the search warrant contained sufficient grounds and that the dynamic entry was justified by the potential presence of a firearm.

The court also held that the police had reasonable grounds for the arrest and did not use excessive force.

Finally, the court ruled that the photo line-up substantially complied with best practices and any flaws went to weight rather than admissibility.

The application was dismissed.

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 high school teacher was charged with voyeurism after surreptitiously recording female students at school using a concealed pen camera.

The Crown alleged the recordings violated the students’ reasonable expectation of privacy and were made for a sexual purpose contrary to s. 162(1)(c) of the Criminal Code.

The court found that although the students did have a reasonable expectation of privacy in the circumstances, the Crown failed to prove beyond a reasonable doubt that the recordings were made for a sexual purpose.

The videos showed fully clothed students and lacked nudity, zooming, or other clear sexualized context.

As the circumstantial evidence did not establish that a sexual purpose was the only rational inference, the accused was acquitted.

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 applicant brought a pre-trial motion to exclude both sworn and unsworn jurors from the courtroom during the 'rotating triers' challenge for cause process.

The Crown and co-accused supported the application.

The court considered conflicting jurisprudence on whether the 2008 amendments to section 640 of the Criminal Code ousted the court's inherent jurisdiction to exclude jurors absent a specific application for 'static triers' under section 640(2.1).

The court concluded that the legislative amendments did not limit its inherent jurisdiction to control its process and ensure an impartial jury under section 11(d) of the Charter.

The application was granted, and all jurors were ordered excluded during the challenge process.

The defendant moved for summary judgment dismissing a claim seeking payment under two 1988 certificates of deposit that allegedly remained unpaid.

The plaintiffs commenced the action in 2011, more than two decades after the certificates matured.

The court held that the certificates constituted demand obligations and promissory notes within the meaning of the Bills of Exchange Act.

Applying the transitional provisions of the Limitations Act, 2002 and the former six‑year limitation period, the court found the claim arose no later than 1988 or 1989 and was therefore long statute‑barred.

The court also held the equitable doctrine of laches applied due to the plaintiffs’ 23‑year delay and resulting prejudice to the defendant.

In a first‑degree murder prosecution, the Crown sought to introduce post‑offence conduct evidence relating to the accused’s handling of a toolbox and the use of an incinerator following the alleged killing.

The defence argued the evidence was speculative, highly prejudicial, and equally consistent with non‑culpable explanations.

The court reviewed the governing principles on post‑offence conduct evidence, including the Supreme Court’s guidance that such evidence is a form of circumstantial evidence whose weight is ordinarily for the jury.

The court held that both the toolbox evidence and the incinerator evidence were relevant and capable of supporting reasonable inferences regarding involvement in a culpable homicide.

Any risk of prejudice could be addressed through careful jury instructions.

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.