Catherine D. Aitken

During a criminal jury trial for assault causing bodily harm, the Crown brought an application to admit part of a witness’s prior written statement under the past recollection recorded exception to the hearsay rule.

The witness had prepared a statement within days of the incident but, at trial nearly three years later, lacked present memory of the accused’s detailed participation in the assault.

The court applied the criteria articulated in appellate jurisprudence requiring a reliable record, timeliness, absence of current memory, and the witness’s present confirmation of the statement’s accuracy.

Finding that the witness personally prepared the statement shortly after the event, had been sober, and vouched for its accuracy despite memory loss at trial, the court held the evidentiary requirements were satisfied.

The probative value of the statement was found to outweigh any prejudice, which could be mitigated through jury instructions and cross‑examination.

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 appellants appealed a decision of the Ontario Securities Commission finding they contravened the Securities Act by trading in securities without registration or a prospectus, and by misrepresenting that the securities would be listed on an exchange.

The appellants argued the transactions were good faith loans exempt from the Act, and raised numerous procedural and fairness arguments including abuse of process, bias, and failure to disclose evidence.

The Divisional Court dismissed the appeal, finding the Commission's conclusion that the transactions were disguised sales was reasonable, and rejecting all procedural and fairness challenges.

The offender, an Aboriginal man, was convicted of second degree murder following a brutal attack on the victim.

The mandatory sentence was life imprisonment, and the sole issue was the period of parole ineligibility.

The Crown sought 15 years, while the defence sought the minimum 10 years.

The court extensively reviewed the offender's profound intergenerational trauma, including the impact of residential schools on his parents, severe childhood abuse, neglect, and systemic racism, applying the Gladue and Ipeelee principles.

Balancing the gravity of the offence with the offender's reduced moral culpability due to these systemic factors, the court set the period of parole ineligibility at 10 years.

The accused, a public servant with Citizenship and Immigration Canada, was convicted of multiple counts of fraud on the government and breach of trust for accepting money to provide preferential treatment to immigration applicants.

The court considered the accused's Aboriginal heritage under Gladue principles but found no causal link to the offences.

Emphasizing denunciation and general deterrence for breach of trust by a public official, the court sentenced the accused to four years' incarceration concurrently on all counts.

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.

The moving parties sought partial indemnity costs of $10,026.89 following an appeal.

The responding parties argued that because the moving parties' counsel charged partial indemnity rates, the costs award should be reduced to 60% of actual costs.

The court rejected this argument, applying the principle from Mantella that partial indemnity costs are determined by the factors in the Rules of Civil Procedure, not by a mathematical discount of actual fees, provided the award does not exceed actual costs.

The court fixed the moving parties' partial indemnity costs at $9,800.

In a costs decision following an appeal, the plaintiff sought costs against the defendants, and the individual defendant sought costs having successfully appealed the personal judgment against him.

The court awarded the plaintiff its trial disbursements and appeal costs against the corporate defendant.

However, the court denied the individual defendant his costs, despite his success on appeal, because he was the primary actor who caused the plaintiff's loss and obfuscated the corporate relationships.

The appellants appealed a Master's decision dismissing their motion to amend their statement of claim to add a claim for knowing assistance against the respondent law firm and lawyer.

The Master had found the proposed claim was statute-barred under the Limitations Act, 2002, as the material facts were discoverable more than two years prior to the motion.

The Divisional Court upheld the Master's decision, finding no error of law in the application of the test for knowing assistance and no palpable and overriding error in the Master's factual findings regarding discoverability.

The appellant appealed a Small Claims Court decision finding him personally liable for unpaid invoices for poker tournament services provided by the respondent.

The trial judge had found a partnership or joint venture existed between the appellant and another individual, avoiding the need to pierce the corporate veil.

The Divisional Court held this was a palpable and overriding error, as the respondent's own evidence was that it believed it was dealing with the corporate entity, not the appellant personally.

The court set aside the personal judgment against the appellant and replaced it with a judgment against the corporate defendant.

In a mid-trial ruling during a murder trial, the court considered whether the partial defence of provocation should be left with the jury.

The accused had armed himself with a hammer before confronting the victim, anticipating a violent response.

When the victim reached for a sword, the accused attacked him.

The court applied the air of reality test and found no evidence that the victim's reaction was sudden or unexpected by the accused.

Consequently, the defence of provocation lacked an air of reality and was not left with the jury.

During a murder trial, the Crown brought a mid-trial motion for a mistrial, alleging that defence counsel misled the court and the Crown by failing to disclose an interview with a former co-accused before seeking permission to cross-examine him.

The court found that while defence counsel showed poor judgment in not disclosing the interview, the resulting prejudice to the Crown was minimal and theoretical.

Given the late stage of the trial, the strong forensic evidence, and the Crown's own inappropriate conduct during closing addresses, the court concluded that a mistrial was not justified and dismissed the application.

During a trial for second-degree murder, the defence sought to call a former co-accused as a witness and cross-examine him.

The co-accused had previously pled guilty to manslaughter, and the Crown had decided not to call him as a witness.

The defence argued that cross-examination was necessary to challenge the co-accused's earlier statements to police, which implicated the accused as the primary attacker.

The court granted the application, finding that restricting the defence to standard rules for challenging one's own witness would undermine the accused's right to make full answer and defence, particularly given the leading nature of the police interview with the co-accused.

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.

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 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.

The appellant condominium corporation appealed a motion judge's order fixing the amount required to discharge a lien registered against the respondent's unit for legal costs incurred in obtaining a compliance order.

The Divisional Court found that the motion judge erred in law by failing to explain how she calculated the 'additional actual costs' under s. 134(5) of the Condominium Act.

However, because the appellant deliberately chose not to tender evidence of its actual legal costs on the motion, the court allowed the respondent's cross-appeal and limited the appellant's recovery to the original $10,000 costs award, ordering the lien discharged.