Brian Holowka

In a voir dire during a first-degree murder trial, the defence challenged the admissibility of the accused's utterances upon arrest and his formal police statement, alleging breaches of s. 10(b) of the Charter and lack of voluntariness.

The court found that a five-minute delay in providing the right to counsel upon arrest was justified by specific officer and public safety concerns.

The court also held that the accused's spontaneous utterances and his subsequent formal statement to police were voluntary beyond a reasonable doubt, despite the accused being a youthful Indigenous offender and the interviewing officer making ambiguous comments about the accused's integrity and future prospects.

The applicant, charged with first-degree murder, sought to exclude evidence of his criminal record (including sexual assault and assault causing bodily harm) and to redact references to these convictions from an expert's forensic psychiatry report.

The court denied the application, finding that while the convictions were prejudicial, they formed a vital basis for the expert's opinion, particularly regarding potential antisocial conduct disorder or sexual paraphilia.

The court emphasized that the jury must have access to the full foundation of expert evidence to assess its weight, even considering Gladue principles for Indigenous accused.

The Crown sought to establish the voluntariness of statements made by the accused to police during a neighbourhood canvass and a subsequent interview at the police station.

The accused argued she was a suspect at the time of the interview and should have been cautioned.

The court found that, viewed objectively, the police did not have sufficient information to regard the accused as a suspect at that early stage of the investigation.

Considering the totality of the circumstances, including the lack of threats, promises, or oppression, the court ruled the statements were voluntary beyond a reasonable doubt.

In a murder trial where the Crown alleged the two accused killed the victim (the wife of one of the accused) to continue their affair, the Crown sought to introduce discreditable conduct evidence and hearsay statements of the deceased.

The court admitted statements made by the accused to a psychic regarding their hatred for the victim, finding the probative value outweighed the prejudicial effect in a judge-alone trial.

The court also admitted the deceased's hearsay statements to a friend that she would not divorce, under the present state of mind exception, but excluded other statements regarding financial control and taking the children due to threshold reliability concerns.

During a joint trial for first-degree murder, the accused sought to introduce evidence of his co-accused's prior discreditable conduct involving knife attacks against her former spouse.

The accused argued this evidence supported his defence that the co-accused acted alone.

The co-accused opposed the admission, arguing it was highly prejudicial.

The court admitted the evidence, finding it sufficiently probative to the accused's right to make full answer and defence, and held that any prejudice to the co-accused could be mitigated by a limiting instruction in a judge-alone trial.

The accused, Bhupinderpal Gill and Gurpreet Ronald, were jointly charged with the first degree murder of Jagtar Gill, the wife of Bhupinderpal Gill.

The Crown alleged that the accused, who were engaged in an extramarital affair, planned and executed the murder so they could be together.

Jagtar Gill was found bludgeoned and stabbed to death in her home while recovering from hernia surgery.

The court found that Gurpreet Ronald entered the home and carried out the physical killing, while Bhupinderpal Gill aided in the murder by planning it, preparing the murder weapon, ensuring the victim was alone, and subsequently disposing of incriminating evidence.

Both accused were found guilty of first degree murder.

The accused, charged with sexual assault and criminal harassment, brought an application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay from the laying of charges to the anticipated end of trial was approximately 23 months, exceeding the 18-month presumptive ceiling for provincial courts.

The court found only 28 days of defence delay and rejected the Crown's arguments that the defence implicitly waived delay or engaged in illegitimate conduct regarding disclosure and scheduling.

The court also rejected the Crown's argument that the case was complex.

Finding no exceptional circumstances to justify the net delay of nearly 22 months, the court ordered a stay of proceedings.

The applicant, having been found guilty of two counts of sexual assault, was subject to a fitness hearing during a dangerous offender assessment application.

The applicant brought a motion for a mistrial, alleging actual bias and a reasonable apprehension of bias on the part of the trial judge based on various evidentiary and scheduling rulings made during the hearing.

The court dismissed the application, finding that the rulings were made in accordance with the law and trial management principles, and did not demonstrate any bias or predisposition.

This is an addendum to a sentencing decision.

The court converted the offender's sentence from months to days to properly reflect the credit for pre-trial custody on a count-by-count basis.

The total sentence before credit was calculated as 3242 days, with 1965 days of credit, leaving an actual sentence of 1277 days.

The offender pleaded guilty to six counts of sexual assault and three counts of voyeurism involving nine victims.

The offences involved surreptitiously recording and sexually touching women while they were asleep or unaware.

The Crown sought a global sentence of 12 years and 10 months and a long-term offender designation with a 10-year supervision order.

The court imposed a global sentence of 8.9 years, reduced to 42 months going forward after credit for pre-sentence custody.

The court also designated the offender as a long-term offender, imposing a 6-year supervision order, finding a substantial risk of re-offending that could eventually be controlled in the community.

The accused was initially found unfit to stand trial on murder charges on January 4, 2017, and a sixty-day "make fit" order was issued.

At the March 10, 2017 hearing, the Crown conceded that it had not met its burden of proving fitness on the balance of probabilities.

The court found the accused remained unfit to stand trial, primarily due to cognitive impairments caused by major depressive episode and schizophrenia that prevented him from meaningfully participating in trial and instructing counsel.

The accused, jointly charged with first degree murder in the death of his wife, brought a motion for a directed verdict of acquittal.

The Crown's theory was that the accused set the stage for his co-accused, with whom he was having an affair, to carry out the killing.

The court reviewed the circumstantial evidence regarding motive, planning and deliberation, and post-offence conduct.

The court concluded that the cumulative effect of the evidence was capable of supporting the inferences sought by the Crown and dismissed the motion.

The defence counsel for Gurpreet Ronald sought to prohibit her former counsel, Mr. Bruce Engel, from testifying for the Crown, asserting solicitor-client privilege.

The court examined the validity of two waivers of privilege: a verbal waiver given on August 6, 2014, and a written waiver given on August 21, 2014, after consultation with independent counsel.

The court found the verbal waiver invalid due to the lack of independent legal advice but upheld the written waiver as valid and irrevocable, as the information had already been disclosed.

The court also clarified the scope of solicitor-client privilege, ruling that it covered communications between Ms. Ronald and Mr. Engel but not the content of Mr. Engel's subsequent conversation with co-accused Mr. Gill.

The application to prohibit testimony was dismissed.

The court issued two rulings during a murder trial.

First, it rejected the defence's argument that if one co-accused was acquitted, the other must also be acquitted based on conspiracy law, clarifying that the old common law rule for conspirators is no longer valid and, in any event, the accused were charged with murder, not conspiracy.

Second, the court denied the request to leave second-degree murder as an included offence to the jury, finding no air of reality in the evidence to support a conclusion of intentional but spontaneous killing, given the pre-meditated actions of the assailant.

The accused, Gurpreet Ronald and Bhupinderpal Gill, charged with first-degree murder, sought to edit their voluntary exculpatory statements given to police.

The Crown alleged the accused acted in concert to kill the victim.

The court reviewed legal principles for editing voluntary statements, emphasizing the balance between relevance, prejudicial effect, and the right to a fair trial in a joint proceeding.

The judge ruled that segments where the officer commented on the accused's credibility, advised them to tell the truth, or expressed opinions on co-accused's guilt should be excised as they are not probative and are prejudicial.

The accused, Gurpreet Ronald, applied for severance of her charges from those of her co-accused, Bhupinderpal Gill, in a first-degree murder trial.

The Crown alleged a conspiracy between the co-accused to kill Mr. Gill's wife.

Ms. Ronald sought severance due to the potential admission of evidence regarding her prior discreditable conduct, which Mr. Gill intended to use to raise reasonable doubt about his involvement.

The court dismissed the severance application, finding that the potential prejudice from the prior conduct evidence was low given the strong direct and circumstantial evidence linking Ms. Ronald to the death.

The court also determined that any potential prejudice could be mitigated by appropriate limiting jury instructions, affirming the presumption that juries follow judicial directions.

The accused sought an order permitting challenges for cause of prospective jurors based on race, religion, pre-trial publicity, marital infidelity, and employment bias.

The court permitted challenges for cause on the grounds of race, religion (by agreement), and pre-trial publicity, finding a realistic potential for bias that might prevent jurors from being impartial despite judicial instructions.

However, the court denied challenges for cause based on marital infidelity and employment bias, as the applicants failed to demonstrate widespread community bias or that potential jurors would be incapable of setting aside such biases.

The accused, jointly charged with first-degree murder, brought an application to sit with their counsel at trial rather than in the prisoner's dock.

The court reviewed the divided judicial approaches to this issue, including the Kaufman Commission's recommendation and the Ontario Court of Appeal's guidance in *R. v. Lalande*.

Despite the accused presenting no particular security risks and being in custody, the application was dismissed.

The court found that practical courtroom limitations prevented the accused from being adequately visible to the jury and witnesses from the counsel table, and that any potential stigma associated with the prisoner's dock could be addressed through jury instructions.

In a first-degree murder trial, the Crown sought to admit hearsay statements of the deceased and evidence of prior discreditable conduct of the accused.

The court applied the principled approach to hearsay and the test for prior discreditable conduct, assessing relevance, necessity, reliability, and prejudicial effect.

Certain hearsay statements regarding the deceased's state of mind and marital unhappiness were admitted, as were some instances of the male accused's controlling behaviour.

However, vague allegations of physical abuse and a statement about visiting family were deemed unreliable and inadmissible.

The applicant, Gurpreet Ronald, sought a finding that a General Warrant issued under s. 487.01 of the Criminal Code breached s. 8 of the Canadian Charter of Rights and Freedoms, and that evidence obtained from it should be excluded under s. 24(2) of the Charter.

The motion alleged material non-disclosure and misleading information in the Information to Obtain (ITO) the warrant, specifically regarding attempts to obtain DNA and the seizure of garbage.

The court found no material non-disclosure or misinformation, concluding that the information before the issuing justice was sufficient to establish reasonable and probable grounds for the warrant.

Consequently, the court found no breach of s. 8 of the Charter and upheld the warrant's validity.