Brent Mcrae Bentham

The appellant appealed a conviction for refusing to provide a breath sample, raising two grounds: whether the officer had reasonable suspicion for the demand under s. 254(2) of the Criminal Code, and whether the appellant had a reasonable excuse due to a mistake of law.

The court found that the trial judge correctly determined that the officer had reasonable suspicion based on the totality of circumstances, including the smell of alcohol from the vehicle and later from the appellant's breath in the cruiser.

The court also rejected the argument of reasonable excuse based on officially induced error, affirming the trial judge's assessment of the evidence.

The appeal was dismissed.

The Crown brought an application to admit the audio and written statements of a deceased witness under the principled exception to the hearsay rule.

The court accepted that necessity was established because the declarant had died, but considered whether the statements met the threshold reliability requirement.

The court held that the unsigned and undated handwritten statements lacked sufficient indicia of reliability and authenticity and were therefore inadmissible.

However, the recorded audio interview was found sufficiently reliable and probative, given its voluntary nature, contemporaneity, detailed content, and potential corroboration by other witnesses.

The audio statement was admitted subject to editing to remove speculative or prejudicial portions.

In a murder prosecution, the court considered a voir dire on the voluntariness of several statements given by the accused to police in 2002.

The defence argued the statements were involuntary due to lack of a proper caution, deceptive investigative tactics, and the police use of evidence previously obtained in breach of the accused’s s. 8 Charter rights.

The court held that the absence of a caution and police deception did not undermine voluntariness, as the accused understood her right to silence and demonstrated sophistication during the interviews.

However, fairness concerns arose where police referenced material seized unconstitutionally from a gun locker.

The court ruled the statements voluntary but ordered that portions referring to that material be excised.

During a murder trial, the defence challenged the admissibility of a journal and cassette recording seized from a locked gun locker in the marital home, arguing the search violated the accused’s s. 8 Charter right against unreasonable search and seizure.

The court found the accused had not provided legally valid consent for police to open the locker and seize the items, resulting in a Charter breach.

Applying the s. 24(2) framework from Grant, the court assessed the seriousness of the police conduct, the impact on the accused’s privacy interests, and society’s interest in adjudication on the merits.

The police were found to have acted in good faith during the early stages of a homicide investigation and reasonably believed consent had been given.

Balancing the factors, the court concluded that admitting the evidence would not bring the administration of justice into disrepute and ruled the items admissible.

The accused was charged with first degree murder in relation to the death of her spouse.

The Crown sought a ruling that multiple statements made by the accused to police during the investigation were voluntary and therefore admissible.

The defence argued the statements were involuntary because the accused had become the primary suspect during the investigation but was not cautioned, and police misled her about her status.

Applying the confessions rule and the operating mind doctrine, the court assessed the context of the interviews, the accused’s sophistication, and the absence of coercive police conduct.

The court concluded the accused understood she was speaking with police and that her statements could be used as evidence, and that the police conduct, including limited deception, did not undermine voluntariness.

The Crown applied to have the offender declared a dangerous offender under s. 753 of the Criminal Code following convictions for aggravated assault, assault causing bodily harm, assault with a weapon, threatening death, obstruction of justice, weapons offences, and multiple breaches of probation.

The court reviewed the offender’s history of violent assaults and expert psychiatric and psychological evidence assessing the risk of violent recidivism.

Although the offender demonstrated anti‑social personality traits and a moderate risk of violent reoffending, the court found the offences did not establish the level of intractable pattern of behaviour required for a dangerous offender designation.

Applying conventional sentencing principles including denunciation, deterrence, rehabilitation, and the totality principle, the court imposed a determinate penitentiary sentence.

Credit for pre‑sentence custody was reduced from the usual 2:1 given the offender’s risk profile and incarceration history.