Anna R. Tenhouse

In a first-degree murder trial, the Crown sought to introduce ante-mortem statements made by the deceased to demonstrate his state of mind and the accused's motive to kill.

The defence objected to the viva voce evidence of five witnesses and a Facebook thread, arguing they failed the test of necessity and were not material to motive.

The court ruled the statements admissible, finding they fell under the state of mind exception to the hearsay rule and were not introduced for the truth of their contents.

The court also held the statements were material to establishing motive and their probative value outweighed any prejudicial effect, subject to minor redactions.

The accused was convicted of two separate murders and faced a potential order under s. 745.51 of the Criminal Code that his parole ineligibility periods be served consecutively, totaling 41 years.

The accused challenged the constitutional validity of s. 745.51, arguing it violated ss. 7 and 12 of the Charter by permitting life-long sentences without hope of release.

The court dismissed the application, finding that the discretionary power to impose consecutive parole ineligibility periods for multiple murders does not require or permit grossly disproportionate sentences.

The court also noted that the royal prerogative of mercy provides a realistic hope of eventual release.

The accused, charged with first degree murder, brought an application to exclude sworn jurors from the courtroom during the challenge for cause process using rotating triers.

The Crown argued that recent appellate jurisprudence eliminated the trial judge's inherent jurisdiction to exclude sworn jurors.

The court held that it retained the common law discretion to exclude sworn jurors, as the Criminal Code is silent on the matter.

The court exercised its discretion to exclude the sworn jurors to prevent them from sitting idly in court for up to a week while the remainder of the jury was selected, which would diminish respect for the process.

In a first-degree murder trial, the applicants (accused) brought an application to adduce evidence of an alternate suspect.

The Crown moved to dismiss the application summarily.

The court dismissed the application on two grounds: first, for severe non-compliance with the Criminal Proceedings Rules regarding the filing of materials and factums; and second, because the proposed evidence lacked an 'air of reality' and failed to establish any sufficient connection, motive, means, or propensity linking the proposed third party to the murder.

The applicants, charged with first degree murder, brought a motion to adduce evidence at trial of a known third party as an alternate suspect.

The Crown alleged the applicants conspired to kill the deceased for insurance proceeds.

The applicants sought to introduce evidence that the deceased's former common-law partner had motive and opportunity to commit the murder.

The court applied the test for third-party suspect evidence, requiring a sufficient connection between the third party and the crime.

The court found the proposed evidence lacked direct connection, relied on hearsay, and failed to establish motive, means, or propensity.

The motion to adduce the alternate suspect evidence was dismissed.

Two co-accused, charged with first-degree murder, sought an order permitting their joint representation by a single counsel, Ms. von Achten, following a prior order removing her as counsel for one accused due to conflict.

The court considered the accused's right to counsel of choice, the potential for tactical disadvantages, and the public interest.

Despite acknowledging potential future conflicts and the risk of proceeding unrepresented, the accused, having received independent legal advice, were adamant about their choice.

The court granted the application, emphasizing the accused's constitutional right to choose counsel, provided they confirm their understanding of the risks on the record.

In a pre-trial motion for a first-degree murder case, the Crown sought to admit evidence of the accused's prior discreditable conduct, including drug trafficking, acts of violence, and motive.

The court endorsed agreements between the parties allowing evidence of the accused's drug trafficking to provide narrative context, and allowing witnesses to state they feared the accused without detailing specific prior violent acts.

The court also ruled that the Crown could lead evidence of the accused's motive—specifically that he killed the deceased in retaliation for a prior assault by the deceased's close associate—finding its probative value outweighed any prejudicial impact.

The accused, Mauro Granados-Arana, facing a first-degree murder charge, challenged the admissibility of certain crime scene and autopsy photographs that the Crown sought to tender into evidence.

The court applied the probative value versus prejudicial effect test, noting that modern juries are less easily inflamed by graphic images.

The court found that crime scene photographs were admissible without objection.

For autopsy photographs, the court ruled that photographs depicting defensive hand injuries and head/shoulder injuries were admissible.

Their significant probative value in illustrating the nature and extent of injuries, the degree of force used, the perpetrator's intent, and corroborating expert opinion outweighed their potential prejudicial effect, especially given their black and white presentation.

The application to exclude the photographs was dismissed.

The accused, Elaine Biddersingh, was found guilty of second-degree murder of her step-daughter, Melonie Biddersingh, after a jury trial.

The court considered the character of the offender, the nature and circumstances of the offence (prolonged abuse, malnutrition, and eventual drowning of the victim, followed by concealment of the body), and the jury's recommendations to determine the period of parole ineligibility.

The court rejected the defence's mitigating factors, including the passage of time and the accused's pro-social lifestyle, due to lack of genuine remorse and acceptance of responsibility.

The court imposed a life sentence with parole ineligibility set at 16 years, along with a lifetime firearms prohibition and a DNA order.

During a murder trial, the defence brought an application to exclude newly disclosed expert evidence relating to histological slide analysis conducted by a forensic pathologist the day before testifying.

The defence argued the late disclosure breached the accused’s right to make full answer and defence under s. 7 of the Charter because cross-examinations of earlier forensic witnesses had already been conducted based on the absence of such evidence.

Applying the framework in R. v. Bijelland, the court considered whether exclusion was necessary or whether lesser remedies could cure the prejudice.

The court found that admitting the evidence at the end of the Crown’s case would materially prejudice the defence strategy and that an adjournment or recall of witnesses would not remedy the unfairness.

The evidence derived from the late histological review was therefore excluded.

The Crown sought direction regarding the admissibility of evidence from a physician who recalled observing “rope marks” on a child during a visit in 1992 and being told by the child’s mother that the injuries were caused by a sibling who had since died.

The Crown argued the evidence formed part of a pattern of abusive conduct and was relevant to aggravated assault allegations within the charged timeframe.

The court held that linking the injuries to the accused required introducing evidence surrounding the sibling’s death, which had already been ruled inadmissible as prior discreditable conduct.

The probative value of the physician’s testimony was outweighed by its prejudicial effect, particularly the risk of propensity reasoning.

The evidence was therefore ruled inadmissible.

The Crown sought to introduce evidence of the accused's prior discreditable conduct and hearsay ante-mortem statements of his deceased children in a trial for first-degree murder and other offences.

The accused cross-applied to sever an obstruct justice count relating to the earlier death of his son.

The court granted the severance application, finding the evidence surrounding the son's death highly prejudicial.

The court admitted some prior discreditable conduct evidence, including physical abuse and threats, as vital narrative and to show a pattern of abusive control.

Certain ante-mortem statements were also admitted under the state of mind hearsay exception, while others were excluded.

The accused applied for permission to sit at counsel table during a jury trial rather than in the prisoner’s dock, arguing that seating in the dock could undermine the presumption of innocence and hinder communication with counsel.

The court reviewed competing authorities concerning the placement of an accused in the courtroom and emphasized that the traditional position is the prisoner’s dock, subject to the trial judge’s discretion.

The court held that removal from the dock should occur only in exceptional circumstances where necessary to permit full answer and defence and where no security concerns exist.

As no such exceptional circumstances were demonstrated and the courtroom configuration would obscure the accused from the jury if seated behind counsel, the application was refused.

The accused applied during jury selection for an order excluding unsworn prospective jurors from the courtroom while challenge-for-cause questions concerning potential racial bias were asked.

The defence argued that exclusion was necessary to prevent prospective jurors from becoming "schooled" by hearing repeated challenges and tailoring their responses.

The court considered the interaction between the inherent jurisdiction to exclude jurors and the statutory regime in s. 640(2.1) and s. 640(2.2) of the Criminal Code, as interpreted in prior decisions.

Finding that the defence concern related to juror schooling rather than preserving impartiality between the Crown and the accused, the court followed the approach in Sandham and exercised its discretion to exclude unsworn jurors while permitting rotating triers.

The accused, charged with the first-degree murder of his daughter, brought a pre-trial application to exclude expert opinion evidence suggesting starvation as a possible cause of death.

The accused argued the Crown provided late notice of this theory and that the underlying estimates of the victim's pre-death weight lacked scientific validity.

The court dismissed the application, finding that late notice did not warrant exclusion given the time remaining before trial, and that the experts' estimates, based on specialized experience rather than strict scientific testing, met the threshold reliability required for admissibility.

The Crown sought to admit statements made by the accused to police during his transport and subsequent interview regarding the death of his daughter.

The accused argued the statements were involuntary and obtained in breach of his ss. 7 and 10(b) Charter rights.

The Superior Court of Justice found the transport utterances inadmissible because the accused was not informed he was a murder suspect, vitiating his right to make an informed choice to remain silent.

While the station interview did not violate s. 10(b), the court excluded it under its residual discretion, finding its prejudicial effect outweighed its probative value due to the accused's repeated requests for counsel and the lack of inculpatory responses to police theorizing.

The accused applied for a bail review after a justice of the peace denied release.

The application relied on an alleged change in circumstances, namely the availability of a new surety.

The court accepted that the proposed surety was well-meaning but found she was unaware of the full extent of the accused’s criminal record and the allegations against him.

Given the seriousness and extreme violence alleged, the court concluded the proposed release plan failed to address the secondary ground and also engaged the tertiary ground.

The bail review application was therefore dismissed.

The applicant, charged with second degree murder following an inmate assault at the Toronto Don Jail, sought judicial interim release.

A previous bail application was dismissed due to concerns about the proposed sureties' ability to supervise him.

Despite proposing a new surety and a relocation to Aurora, the court found the applicant failed to establish that his detention was not justified on the secondary ground, citing his past failure to abide by his family's direction and his recent conviction for serious firearms offences.

The application for bail was dismissed.