Brett McGarry

The court ruled on the admissibility of expert psychiatric evidence and hospital records in a first-degree murder trial involving two sisters charged with killing their mother.

The accused sought to introduce seven hospital records as business records and expert opinion evidence from a forensic psychiatrist regarding the accused's mental health condition, the effects of chronic abuse, and related psychiatric concepts.

The Crown opposed both applications on grounds of hearsay, prejudicial effect, and necessity.

The court admitted the hospital records as business records and qualified the expert to provide opinion evidence on psychiatric assessment, diagnosis, causes, and impacts of mental disorders, while restricting the expert from opining on the specific conduct of the accused.

The Crown sought to call Dr. Saumil Dholakia, a treating psychiatrist, as a participant expert to provide opinion evidence regarding his assessment, diagnosis, and treatment of the accused Hue Lam during the period from February 8 to September 30, 2022.

The defence opposed the admission of Dr. Dholakia's opinion evidence, arguing that if qualified as an expert, the jury would improperly compare his opinions with those of Dr. Zeynep Selaman, a litigation expert retained by the defence.

The court ruled that Dr. Dholakia could testify as a participant expert and provide opinion evidence within defined parameters, finding that the probative value of the evidence was not outweighed by prejudicial effects and that appropriate jury instructions could address defence concerns.

The court ruled on whether the defences of self-defence and provocation should be put to the jury in a case where two sisters admitted to killing their elderly mother.

The accused claimed they acted in self-defence based on a lifetime of physical and verbal abuse, which escalated in the week preceding the killing.

The court found an air of reality to the self-defence defence for both accused, considering the chronic abuse, the accused's cultural background, their mental health conditions, and the modified objective test applicable to self-defence.

The court rejected the provocation defence due to insufficient specificity regarding the triggering act and the lack of evidence that the accused acted "on the sudden."

This is a ruling on the admissibility of defence expert opinion evidence in a criminal trial involving two sisters charged with killing their mother.

The defence sought to call Dr. Danièle Bélanger, an expert in Vietnamese society, gender, family, and migration, to provide cultural context evidence.

The Crown opposed the admission of this evidence.

The trial judge conducted a voir dire and ruled that the expert evidence was admissible, finding that it met all threshold requirements under the Mohan framework and that the probative value outweighed any prejudicial effects.

The evidence was found to be logically relevant to issues of credibility, motive, intent, and self-defence, and necessary to assist the jury in understanding the accused's state of mind and the cultural context in which they operated.

The applicant sought certiorari to quash an order committing him to stand trial for second-degree murder.

The applicant argued that the preliminary hearing judge exceeded her jurisdiction by failing to consider exculpatory evidence regarding the mens rea element of the offence.

The reviewing court found that the preliminary hearing judge properly considered the totality of the evidence, including the exculpatory statement, and correctly applied the test for committal based on circumstantial evidence of mens rea derived from surveillance video.

The application for certiorari was dismissed, and the applicant was ordered to stand trial.

This decision concerns a bail application by Isaah Picody-Naveau, who is charged with second-degree murder and other criminal code offences, including domestic violence.

The applicant sought bail under sections 515 and 522 of the Criminal Code, while the Crown applied under section 524(8) to cancel his prior release.

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

Despite the applicant's history of breaching release orders and violent temper, the court granted bail.

Key factors influencing the decision included the significant time spent in custody (over 315 days), a compelling Gladue report highlighting intergenerational trauma and a difficult upbringing, a strong proposed release plan relying on family sureties and GPS monitoring, and the perceived weakness of the Crown's second-degree murder case, particularly regarding the mens rea element.

The court emphasized the presumption of innocence and the right to reasonable bail as articulated in R. v. Antic.

The defendant in a sexual assault case brought a motion for directions under s. 278.1 of the Criminal Code to determine the admissibility of Facebook messages exchanged with the complainant.

The court had to decide if the messages contained personal information for which the complainant had a reasonable expectation of privacy, making them presumptively inadmissible.

The court found that two of the three sets of messages met this definition, while one mundane chat did not.

The ruling clarified the factors for assessing privacy expectation, rejecting the relevance of the current adversarial relationship and broad policy implications at the initial definitional stage.

A young person pleaded guilty to sexual assault and incest committed against his two sisters between 1991 and 1997.

The Crown sought 18 months secure custody and 6 months open custody followed by probation.

The defence sought probation and community service.

The court imposed a two-year probation sentence to commence on January 2, 2023, after the completion of the accused's adult penitentiary sentence.

The court applied the principles of the Youth Criminal Justice Act, emphasizing rehabilitation and reintegration, and considered the totality principle given that any youth custody would be served consecutively to an existing adult sentence.

The accused, J.S., pleaded guilty to one count of sexual touching against his daughter (P.S.) and one count of sexual assault against a family friend (C.C.), both minors.

The court considered the circumstances of the offences, the offender's background including mental health issues and military service, and victim impact statements.

Applying sentencing principles of denunciation and deterrence, and considering statutory aggravating factors (abuse of a person under 18, abuse of trust) and mitigating factors (no criminal record, guilty plea, remorse, mental health treatment), the court imposed a total custodial sentence of three and a half years' jail.

Ancillary orders included a weapons prohibition, DNA order, s. 161 order, s. 743.21 order, and a S.O.I.R.A. order.

T.C. was found guilty of six charges, including sexual assault, incest, and mischief, against his younger sister, V.C., which occurred from V.C.'s age four to sixteen-seventeen.

This decision outlines the sentencing, considering aggravating factors such as breach of trust, prolonged abuse, the use of weapons, and the severe psychological trauma inflicted upon the victim.

Mitigating factors included T.C.'s lack of a criminal record and a low assessed risk of re-offence.

The court imposed a total sentence of eight years of incarceration, to be served concurrently, along with ancillary orders including a mandatory DNA order, a lifetime weapons prohibition, lifetime registration under the Sex Offender Information Registration Act, and restrictions on employment involving minors.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood and operating a motor vehicle while impaired by alcohol.

The Crown's case relied on observations from truck stop employees who reported a suspected impaired driver, police observations of the accused's vehicle and physical condition, and breath analysis results.

The defence challenged the reliability of the approved screening device test on Charter grounds, arguing the officer failed to consider the possibility of mouth alcohol contamination.

The court found no Charter breach, as the officer reasonably concluded no evidence suggested recent alcohol consumption within 15 minutes of the test.

The court convicted the accused on both counts based on the totality of evidence demonstrating impairment.

The offender, N.F., was found guilty of five counts of sexual offences against his granddaughter.

The court considered aggravating factors including the victim's young age, the breach of trust by the grandfather, and the long-term impact on the victim and family.

Mitigating factors such as the offender's age, health, and language difficulties were noted but not considered mitigating for the sentence itself.

The court emphasized denunciation and deterrence, imposing a global sentence of three years imprisonment for the sexual offences, with concurrent terms for related counts and a conditional stay for others under the Kienapple principle.

Ancillary orders included a DNA order, SOIRA order for life, weapons prohibition, and non-contact/prohibition orders.

The accused pleaded guilty to fraud over $5,000 arising from a scheme that diverted $497,000 from an elderly victim’s bank account and to attempting to obstruct justice during the subsequent jury trial.

The fraud involved directing the transfer of the funds to a third party and misleading investors about the legitimacy of the funds, causing financial and emotional harm to multiple victims.

While the direct victim was reimbursed by the bank, other victims suffered substantial losses and reputational damage.

The court found significant aggravating factors, including the organized and prolonged nature of the fraud and the accused’s attempt to influence witnesses during trial.

Emphasizing denunciation and deterrence, the court imposed custodial sentences of 16 months for fraud and 12 months consecutive for attempting to obstruct justice, with credit for pre‑sentence custody.

The applicant sought release on bail pending trial on a charge of second degree murder.

The proposed release plan included strict house arrest with parental sureties, significant financial bonds, and real-time GPS monitoring.

The court considered the statutory grounds for pre-trial detention under the Criminal Code and evaluated the apparent strength of the Crown’s case, the seriousness and circumstances of the alleged offence, and the risk of interference with witnesses and the administration of justice.

The court concluded that the Crown’s case appeared reasonably strong and that the alleged conduct involved planning, serious violence, and attempts to influence a witness.

Detention was ordered on the secondary and tertiary grounds to protect the public and maintain confidence in the administration of justice.