Andrew Sabbadini

This decision addresses the admissibility of antemortem statements made by the deceased, C.C., in a first-degree murder trial.

The Crown sought to introduce these statements under various hearsay exceptions, including present intention, physical condition, narrative, and the principled exception.

The court ruled on the admissibility of specific statements made to different witnesses, admitting those that demonstrated present intention, physical condition, or narrative, as well as those admissible under the principled exception or as circumstantial evidence.

Statements tendered to prove a fact contrary to their content were deemed inadmissible.

The Crown sought to introduce a videotaped police statement of a deceased witness at the accused's trial for first degree murder under the principled exception to the hearsay rule.

The court found the statement met the necessity requirement but failed to establish threshold reliability, as it lacked procedural safeguards and substantive reliability due to inconsistencies and the witness's intoxication.

The statement was ruled inadmissible under the principled exception, though specific portions were admitted as pure narrative to provide context to the jury.

This ruling addresses the scope of preliminary inquiries following the amendments introduced by Bill C-75 to the Criminal Code.

The defendants, jointly charged with numerous counts, including offences punishable by 14 years' imprisonment or more and those punishable by less, sought a preliminary inquiry for all charges.

The Crown argued that preliminary inquiry jurisdiction is now limited to offences carrying a maximum penalty of 14 years or more.

The court, aligning with previous decisions in R. v. Davis and R. v. M.R., held that preliminary inquiries are restricted to charges attracting a potential sentence of 14 years' imprisonment or more, even when grouped with less serious charges arising from the same transaction.

The court clarified that while questions about less serious charges might be permitted if closely linked to the serious ones, the court lacks jurisdiction to conduct a preliminary inquiry or order a discharge for offences punishable by less than 14 years.

Michael Durant, charged with two counts of first-degree murder, applied for a change of venue for his new separate trials following a successful appeal.

The application was based on extensive and prejudicial pre-trial and post-conviction publicity in the Welland area, including media speculation about a serial killer, the Ryczak case sentencing controversy, and the fact of his previous convictions.

The Crown opposed, arguing that jury selection safeguards were sufficient.

The court granted the change of venue, finding a fair and reasonable likelihood of partiality or prejudice that could not be overcome by traditional safeguards, particularly given the difficulty in formulating effective challenge-for-cause questions without contaminating the jury pool.

The applicants, Nicola Nero, Dean Wiwchar, and Martino Caputo, sought a stay of proceedings under sections 11(b) and 24(2) of the Canadian Charter of Rights and Freedoms, alleging a breach of their right to a trial within a reasonable time.

This application followed their convictions for conspiracy to commit murder and first-degree murder.

The court analyzed the total delay, defence delay (considering it collectively for co-accused), and whether the delay was justified by exceptional circumstances (discrete events such as preliminary inquiry issues, counsel unavailability, interlocutory appeals, and extensive disclosure from multiple police forces) or case complexity.

The court found that after deducting periods attributable to defence delay, the net delay for each applicant was below the presumptive ceiling established in R. v. Jordan.

Furthermore, the court determined that the case's inherent complexity, the involvement of multiple defendants and prosecutions, voluminous disclosure from various police agencies, and an international aspect constituted exceptional circumstances justifying any delay beyond the ceiling.

The court also considered the case as transitional, noting the parties' reasonable reliance on the law as it existed prior to Jordan.

Consequently, the applications for a stay of proceedings were dismissed, as no breach of the applicants' s. 11(b) rights was demonstrated.

The applicants were found guilty by a jury of conspiracy to murder and first-degree murder.

Prior to sentencing, they applied for a stay of the conspiracy count, arguing that entering convictions for both offences would violate the rule against multiple convictions for the same delict.

The court dismissed the application, finding that the offences lacked both the factual and legal nexus required to engage the rule.

The conspiracy was complete weeks before the murder, and the legal elements of the offences protect different societal interests.

The applicant sought to compel the Crown to disclose the identity of a confidential source, or alternatively, to present the source's physical description of the occupant of a storage locker to the trier of fact.

The applicant argued that the confidential source's description of the occupant as "heavy set" was inconsistent with his own physical appearance, and this information was critical to raising a reasonable doubt about his guilt as the possessor of firearms found in the locker.

The court applied the "innocence at stake" exception to informer privilege, finding that the information was not available from any other source and was likely to raise a reasonable doubt.

The court ruled that the confidential informant privilege must be pierced, allowing the confidential source to be called as a witness on the identification information, or an alternative method to present the description to the trier of fact.

Following a jury conviction for second-degree murder, the court determined the appropriate period of parole ineligibility.

The offender participated in a planned ambush in which the victim was lured to a vacant apartment, forcibly confined, beaten, and shot multiple times.

The jury recommended the minimum ten-year period, while the Crown sought fifteen years.

Considering the offender’s criminal record, the firearm-related nature of the murder, the offender’s participation while on probation and under a weapons prohibition, and the possibility of rehabilitation, the court increased the parole ineligibility period to twelve years.

The accused brought a motion requesting a judicial inquiry into jury deliberations following a conviction for second-degree murder.

The motion relied on an affidavit from a juror alleging coercion and improper comments during deliberations.

The court held that after a verdict is received and the jury discharged, the trial judge is generally functus officio and lacks authority to revisit the verdict, subject to limited exceptions such as errors in recording the verdict.

Applying the jury secrecy rule under s. 649 of the Criminal Code and the principles articulated in Supreme Court jurisprudence, the court concluded that the allegations related to intrinsic aspects of jury deliberations rather than extrinsic information capable of impeaching the verdict.

As the affidavit did not demonstrate the introduction of extrinsic evidence, the court declined to conduct an inquiry and held that any challenge to the verdict must proceed on appeal.