Andrew McLean

The accused was charged with first-degree murder following a fatal shooting in a parking lot outside a nightclub.

The Crown's case relied heavily on the testimony of an alleged eyewitness with a criminal lifestyle and a history as a police informant, as well as circumstantial evidence of post-offence conduct.

The court found the key eyewitness's testimony to be highly unreliable due to numerous internal and external inconsistencies, and concluded that the accused's post-offence conduct did not support an inference of guilt.

Applying the W.(D) test, the court held that the Crown failed to prove beyond a reasonable doubt that the accused was the shooter, resulting in an acquittal.

The accused, Mato Josipovic, applied for judicial interim release (bail) pending a new trial for second-degree murder, citing the potential lethal impact of the COVID-19 pandemic in detention and probable trial delays.

The court considered the primary, secondary, and tertiary grounds for detention under the Criminal Code.

While the primary ground (flight risk) was satisfied, the court found the Crown's case to be overwhelming and the gravity and circumstances of the offense (a public, brutal execution involving multiple shots and danger to bystanders) necessitated detention on the tertiary ground to maintain confidence in the administration of justice.

The specific risks posed by COVID-19 in the detention centre were not found to be higher than in the general population, and potential trial adjournments were deemed uncertain at the time of the application.

The bail application was denied.

The Crown applied to vacate preliminary inquiries scheduled for thirteen accused persons, seeking to apply amendments to section 535 of the Criminal Code (Bill C-75) retrospectively.

These amendments, which came into force on September 19, 2019, restricted the availability of preliminary inquiries to a reduced class of offences.

The accused had elected to proceed to trial in the Superior Court with a request for a preliminary inquiry prior to the amendments coming into force.

The court considered whether the amendments applied retrospectively to strip the accused of their vested right to a preliminary inquiry.

The court dismissed the Crown's application, finding that the amendments do not apply retrospectively to accused persons who had already requested a preliminary inquiry before the amendments came into force.

The applicant challenged the validity of search warrants for a residence and motor vehicle on section 8 Charter grounds, arguing insufficient credible and reliable evidence supported the issuance of the warrants.

The court found that the Information to Obtain contained misleading statements, material omissions, and insufficient indicia of informant credibility and reliability.

After excising erroneous information and considering unredacted portions under the Garofoli "Step Six" process, the court determined there were insufficient grounds establishing a credibly based probability that evidence would be found at either location.

The court excluded all evidence seized from both the residence and motor vehicle under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was charged with impaired operation of a motor vehicle and operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood.

The Crown withdrew the over 80 charge during trial.

The court found the accused guilty of impaired operation based on evidence of an unexplained collision, observations of impairment indicators by civilian and police witnesses at the scene, and the accused's admission of alcohol consumption.

The court considered the totality of circumstances rather than applying a scorecard approach to impairment indicators.

Erick Reid was found guilty of manslaughter following a jury trial where his accomplice was convicted of first-degree murder.

The court made findings of fact consistent with the jury's verdict, establishing Reid's involvement in a planned armed robbery where the victim was shot and killed by his accomplice.

Reid brandished a firearm to intimidate a bystander and failed to assist the dying victim.

The court considered Reid's significant criminal record, including prior firearm and violence offences, and his lack of credibility during testimony.

Aggravating factors included the planned nature of the crime, the use of firearms, the victim's vulnerability, Reid's criminal history, and his refusal to identify the shooter.

Mitigating factors included that Reid did not fire the fatal shot, his supportive family, and pre-sentence custody credit.

Emphasizing denunciation and deterrence for firearm-related violence, the court sentenced Reid to 15 years imprisonment.

With a credit of 42 months for pre-sentence custody, he was sentenced to a further 11.5 years.

Ancillary orders included a lifetime weapons prohibition and a DNA sample.

The Crown appealed the acquittals of the respondent on charges of impaired operation and operating a motor vehicle with a blood alcohol content exceeding 80 mg.

The appeal focused on whether breath samples were taken "as soon as practicable" and whether the trial judge properly considered the cumulative effect of impairment indicia.

The appellate court found that the trial judge erred in her analysis of "as soon as practicable" by penalizing police for an 8-minute delay caused by an unrequested call to duty counsel, which did not actually delay the breath tests given the technician's preparation time.

The court also found that the trial judge committed a palpable and overriding error by taking a piecemeal approach to the evidence of impairment rather than considering its cumulative effect.

The appeal was allowed, acquittals set aside, and the matter remitted for a new trial.

The Crown appealed an acquittal for operating a motor vehicle with a blood alcohol content exceeding 80 milligrams.

The trial judge had ruled a breath technician's certificate inadmissible due to a minor omission (a blank date line on one signature portion) and subsequently refused the Crown's application to reopen its case to call the technician.

The appeal court found that the trial judge erred in law by applying a strict, technical approach to the certificate's admissibility, contrary to modern jurisprudence.

It held that the certificate met statutory requirements and any perceived defect was not material and could have been remedied by other evidence.

The trial judge's late ruling, without prior notice, prejudiced the Crown by denying the opportunity to present further evidence.

The appeal was allowed, the acquittal set aside, a conviction registered, and the matter remitted for sentencing.

In a pre-trial motion for a murder trial, the Crown sought to introduce hearsay evidence from the deceased victim's wife regarding a 2013 robbery allegedly committed by the accused.

The court applied the principled exception to hearsay and the test for prior discreditable conduct.

The court found the identification evidence for the 2013 robbery was frail, failing to meet threshold reliability.

Furthermore, the prejudicial effect of admitting the unproven prior robbery and a related newspaper article outweighed its probative value.

The Crown's motion to introduce the evidence was denied.

The appellant appealed his convictions for impaired driving and refusing to provide a breath sample.

The Summary Conviction Appeal Court dismissed the appeal regarding the impaired driving conviction, finding the trial judge applied the correct legal test and the verdict was reasonable based on the evidence.

However, the court allowed the appeal regarding the refusal conviction because the trial judge failed to address the defence argument that the breath demand became invalid due to police delay in conducting the test 'as soon as practicable'.

A new trial was ordered for the refusal charge.

The accused applied to exclude DNA evidence obtained pursuant to a warrant, arguing his s. 10(b) Charter right to counsel was infringed.

The police executed the warrant at a detention centre and gave the accused only a short time to contact his retained counsel before proceeding to take the sample.

The court found that the police failed to provide a reasonable opportunity to consult counsel, resulting in a s. 10(b) breach.

However, applying the Grant framework under s. 24(2), the court concluded the evidence should not be excluded, as the police acted in good faith, the bodily intrusion was modest, and the reliable DNA evidence was important to adjudicate the serious sexual offence charges on their merits.

The application was dismissed.