Catherine D. Aitken

The Crown sought a ruling that a recorded telephone call made by the accused to the Ottawa Police Reporting Centre reporting vandalism to a vehicle was voluntary and admissible under the common law confessions rule.

The court considered whether there was some evidence that the accused made the call, whether the civilian police call-taker constituted a person in authority, and whether the statement was voluntary under the principles in R. v. Oickle.

The court found sufficient evidence from identifying information provided during the call to allow a jury to infer that the accused made the call.

Even assuming the call-taker could be considered a person in authority, the statement was voluntary because the accused initiated the call, provided information freely, and there were no threats, promises, oppressive circumstances, or police trickery.

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

The central issue was whether the trial judge erred in law regarding the statutory requirement under s. 254(2)(b) of the Criminal Code that a roadside breath demand be made “forthwith” after the officer forms reasonable suspicion of alcohol in the body.

Crown counsel at trial conceded that the roadside demand had not been made forthwith.

The trial judge nevertheless admitted subsequent breathalyzer results after conducting a Charter s. 24(2) analysis and convicted the accused.

The appeal court held that once the Crown conceded the statutory precondition was not met, the roadside screening results and the subsequent breathalyzer results were inadmissible.

The conviction was set aside and an acquittal entered.

During a jury trial for homicide, the Crown brought a mid‑trial application seeking to introduce similar fact evidence of the accused’s alleged violent conduct toward individuals he believed to be paedophiles, including an assault on another inmate while in custody after the charged offence.

The Crown argued the evidence was relevant to motive, animus, intention, and to cross‑examine a defence psychiatric expert regarding the accused’s mental state.

Applying the framework from R. v. Handy, the court held that although the evidence had some relevance to hostility toward paedophiles, its probative value was significantly reduced because similar animus was already before the jury and the proposed incident occurred two years after the alleged homicide.

The court found the moral and reasoning prejudice from introducing the detention‑centre assault—particularly a surveillance video—far outweighed its probative value and risked diverting the jury from the issues in the trial.

The Crown was therefore prohibited from adducing evidence about that assault but was permitted limited cross‑examination about other admitted past altercations and hostility toward child molesters.

Mid-trial evidentiary ruling in a homicide prosecution addressing the admissibility of disposition evidence relating to the deceased.

The defence sought to adduce evidence of a prior violent altercation between the deceased and police officers to support the inference that the deceased reacted aggressively when verbally confronted, thereby raising a reasonable doubt regarding intent for murder and supporting a potential provocation argument.

Applying the principles from Scopelliti and related jurisprudence, the court considered relevance and weighed probative value against prejudicial effect.

The court held the prior incident was sufficiently probative of the deceased’s tendency to react violently in confrontational situations and that any risk of prejudice could be managed through jury instructions.

The defence was therefore permitted to call the evidence.

Mid‑trial Corbett application in a second degree murder prosecution where the accused sought to limit cross‑examination on prior convictions if he testified.

The defence sought to exclude several assault and robbery convictions from the accused’s youth and adult criminal record.

Applying the balancing approach from R. v. Corbett and s. 12(1) of the Canada Evidence Act, the court considered the nature, age, and similarity of the convictions, along with fairness to the trial process and potential prejudice.

The court concluded that certain youth assault convictions and a later adult assault conviction should be excluded, and that youth robbery convictions should be edited to theft convictions to reduce moral prejudice while preserving the integrity of the credibility assessment.

The accused was charged with second degree murder and challenged the admissibility of several statements made to police following his arrest, alleging breaches of his rights under ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms and the common law confessions rule.

The court examined whether the statements were voluntary and whether any Charter breaches required exclusion under s. 24(2).

The court found that statements made in response to questioning by an officer while the accused was detained in a police cruiser and before being advised of his right to counsel were involuntary and obtained in breach of s. 10(b).

Those statements were excluded.

All other spontaneous or later videotaped statements, made after the accused had been advised of his rights and had consulted counsel, were found voluntary and admissible.

The Crown brought a pre‑trial motion seeking to admit videotaped police interviews of three witnesses under ss. 715.1 and 715.2 of the Criminal Code.

The defence opposed admission, arguing the statements did not describe the “acts complained of” and that their admission would prejudice the accused.

The court reviewed jurisprudence interpreting the phrase “acts complained of” and concluded that the videotaped statements primarily concerned events preceding the alleged killing and therefore did not fall within the statutory requirement.

As the statements did not describe the acts forming the basis of the indictment, the statutory prerequisites were not met.

The Crown’s applications to admit the video statements were dismissed.

The accused brought a mid‑trial motion for a mistrial alleging a reasonable apprehension of bias arising from comments and findings made by the trial judge during a bail hearing conducted after the accused absconded during the trial.

The accused argued that the judge made adverse credibility findings and factual findings regarding emails sent to a witness in breach of bail conditions.

The court held that the comments made during the bail decision did not amount to credibility findings demonstrating bias and were based largely on accepting the accused’s own evidence.

The court further held that trial judges routinely make credibility determinations during interlocutory proceedings and that such findings do not require recusal.

Evidence and comments relating to the bail decision could not play any role in determining guilt at trial.

The motion for a mistrial based on reasonable apprehension of bias was therefore dismissed.

A construction company brought a motion for summary judgment seeking damages after its employee fraudulently forged company cheques and deposited them into a third party’s bank account.

The employee forged signatures on twelve cheques and deposited them into the cohabiting partner’s account, from which most funds were withdrawn.

The court held that the tort of conversion is one of strict liability and that depositing funds belonging to another into an account without legal entitlement constitutes conversion, regardless of the account holder’s innocence or lack of knowledge of the fraud.

Summary judgment was granted against both the employee and the account holder for the remaining loss.

The court also declared that the employee’s liability arose from fraud and misappropriation while acting in a fiduciary capacity and would not be released in bankruptcy.

The plaintiffs brought a motion seeking an interlocutory injunction restraining the defendants from interfering with or evicting them from commercial premises used to operate an auto repair garage.

In the alternative, they sought interim relief from forfeiture of a commercial lease after failing to exercise an option to renew within the contractual deadline.

The court held that although there were serious issues to be tried concerning the lease terms and the parties’ conduct, the plaintiffs failed to establish irreparable harm if the injunction was not granted.

The court also found that the tenant had not demonstrated diligent efforts to comply with the lease renewal provisions and therefore did not meet the requirements for relief from forfeiture.

The motion was dismissed.

Following summary judgment in favour of a mortgagee on a first mortgage, the court determined costs arising from the motion and the broader action.

The mortgagee sought substantial costs against the mortgagors and guarantor, while the defendants sought costs against a second mortgagee whose summary judgment motion dismissing their third party claims failed.

The court held that the mortgagee was entitled to costs but found the amounts claimed excessive and reduced them, allocating portions jointly and severally among the defendants.

The court also found the second mortgagee acted unreasonably in bringing a summary judgment motion involving credibility issues and ordered substantial indemnity costs in favour of the guarantor.

Requests to stay enforcement of the summary judgment and costs orders pending related insurance litigation were denied.

The Crown brought a pre‑trial application under s. 486.1 of the Criminal Code seeking permission for support persons to accompany three witnesses while testifying.

The defence consented to support persons for two witnesses with acknowledged mental disabilities but opposed the request for a third witness, arguing insufficient evidence of disability or necessity.

The court considered the statutory presumption under s. 486.1(1) and the discretionary standard under s. 486.1(2), including factors such as the witness’s age, the nature of the offence, and the witness’s relationship with the accused.

The court found no evidence that the third witness suffered from a mental or physical disability or required support to provide a full and candid account.

The application was granted for the two witnesses under s. 486.1(1) but denied for the third witness under both subsections.

On a pre‑trial motion in a murder prosecution, the accused sought relief concerning the Crown’s intention to rely on a written record to support a KGB application admitting hearsay statements of the deceased under the principled exception.

The defence argued it should be able to test the reliability of the statements through cross‑examination of the civilian witnesses who reported them.

The court held that although the Crown could proceed on the written record, fairness required that the defence be permitted to cross‑examine the relevant witnesses on the KGB voir dire.

To avoid prejudice to the accused in locating or preparing potentially hostile witnesses, the Crown was required to produce them if the defence elected to call them.

In child protection proceedings, the applicant society brought a motion for summary judgment seeking a final order granting sole custody of the child to the father with supervised access to the mother.

The evidence demonstrated a lengthy history of domestic violence, substance abuse, mental health instability, and inconsistent participation in treatment and parenting programs by the mother.

The father had cooperated with the society, completed counselling and anger management programs, and was providing stable care for the child.

The mother filed no responding evidence and sought an adjournment at the hearing.

The court held there was no genuine issue requiring a trial and granted sole custody to the father under the Child and Family Services Act with conditions and supervised access to the mother.

The applicant sought a review of a detention order following a bail hearing where he had been denied release on secondary grounds.

He faced numerous drug trafficking, weapons, and assault-related charges arising from a police investigation into alleged gang-related drug trafficking and a separate violent assault.

The applicant argued there had been a material change in circumstances due to the availability of an additional surety, increased financial pledges, and further evidence regarding a proposed surety’s supervision abilities.

The court held that these factors did not constitute a material change in circumstances capable of reopening the detention decision.

Even if they did, the court found continued detention remained justified due to the substantial likelihood the applicant would reoffend or interfere with the administration of justice.

On a status review application under the Child and Family Services Act, the child protection authority sought Crown wardship without access for three young children with significant behavioural and developmental needs.

The parents proposed that the children be returned to the father under a supervision order.

The court reviewed extensive evidence of long‑standing child protection involvement, unstable housing, chronic household disorder, parental conflict, substance use, and the parents’ inability to consistently meet the children’s complex needs despite significant community support.

While acknowledging the father’s commitment and efforts, the court concluded he lacked the capacity, resources, and organization required to safely parent the children long term.

The court determined that permanency through adoption best served the children’s interests and ordered Crown wardship without parental access.