C. Fraser

The plaintiff brought a motion for summary judgment arising from the defendant's breach of an agreement of purchase and sale for a residential property in Mississauga.

The purchase price was $8,385,000 and the defendant failed to close the transaction after multiple extensions.

The parties agreed that carrying cost damages were $550,000, leaving only the loss of the benefit of the bargain in dispute.

The defendant argued the plaintiff failed to mitigate damages by not accepting a $7 million offer with a vendor takeback mortgage and by initially listing the property at the original price in a declining market, but led no expert or appraisal evidence despite being given an adjournment to do so.

The court found the plaintiff took reasonable steps to mitigate by relisting the property within two weeks and reducing the price on several occasions, and granted summary judgment for $1,835,000 in loss of bargain damages plus $550,000 in carrying costs.

The accused pleaded guilty to obstructing justice by destroying evidence of a crime.

The Crown and defence presented a joint submission, supported by the victim's family, proposing a sentence of one day in custody after accounting for pre-trial custody and house arrest.

The court accepted the joint submission, noting the guilty plea as a significant mitigating factor and applying credit for four months of pre-trial custody and 2.3 years of house arrest.

A DNA order was also imposed.

This decision contains pre-charge conference rulings in a first-degree murder trial involving two accused.

The court addressed two main issues: the Crown's request to include constructive first-degree murder under s. 231(5)(e) of the Criminal Code as a route of liability, and Mr. Smich's request for a Vetrovec warning regarding certain Crown witnesses.

The court denied the Crown's request for constructive murder, finding no air of reality to unlawful confinement distinct from the killing.

It also denied Mr. Smich's request for a Vetrovec warning for the specified witnesses, concluding that the jury would be capable of assessing their credibility with general instructions.

However, the court granted Mr. Millard's counsel's request for a caution regarding Mr. Smich's testimony where it implicates Mr. Millard.

The Crown applied mid-trial to admit text messages between the two accused, previously ruled inadmissible, arguing that defence cross-examination had "opened the door" by asserting lack of planning, good character, or lack of knowledge of the "Eliminator." The accused opposed, citing prejudice and lack of material change in circumstances.

The court denied the Crown's application, finding no material change in circumstances to warrant reconsideration of the prior ruling, and that the probative value did not outweigh the significant prejudice, especially given the potential for references to another alleged murder.

Limited exceptions were made for cross-examination if the accused testified on specific points.

The Crown sought a mid-trial order for the jury to conduct a view of multiple crime scenes and an incinerator device in a murder trial.

The accused opposed, arguing prejudice due to late timing, potential for misleading the jury regarding the theoretical route, and inflammatory impact of the incinerator.

The court dismissed the application, finding the Crown failed to demonstrate a "very real and demonstrable advantage" that could not be achieved through existing evidence, and that the late stage of the trial exacerbated the risk of prejudice and overemphasis.

Mark Smich, a co-accused in a joint trial, brought an application to introduce evidence of Dellen Millard's general propensity or bad character, arguing that Millard's counsel had put Millard's character in issue during cross-examination of a witness.

Millard and the Crown opposed the application.

The court found that the cross-examination, which elicited evidence about Smich's violent temperament, anger issues, and control over others, including rap lyrics, was within the scope of a Pollock and Morrisson application.

This evidence was deemed probative to specific issues, such as Smich's ability to intimidate and weapon ownership, relevant to Millard's antagonistic defence.

The court concluded that Millard's general character had not been put in issue by these questions and that there was no imbalance requiring rebuttal.

The application was dismissed.

The accused applied to quash search warrants issued on May 11 and May 12, 2013 and to exclude evidence under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

The court reviewed whether the Information to Obtain provided reasonable grounds and whether police conduct during searches of multiple properties was constitutional.

The court found that a warrantless search of the accused’s aircraft hangar violated s. 8 and that evidence seized from the hangar should be excluded.

However, the court upheld the validity of the search of the accused’s residence and admitted evidence relating to an incineration device and associated forensic evidence discovered on rural property.

Applying the Grant framework, the court concluded that admission of the latter evidence would not bring the administration of justice into disrepute.

The accused brought an application to exclude statements made to police and observations obtained during a police visit to his aviation business hangar during a missing-person investigation.

The court considered alleged breaches of ss. 7, 8, and 10 of the Canadian Charter of Rights and Freedoms arising from police questioning and a warrantless walk-through of the hangar.

The court held that the accused was not detained while speaking with police in the public reception area and that statements made there were admissible.

However, once police moved into the secure hangar area, the accused was psychologically detained and the police conducted a warrantless search without valid consent.

The resulting observations and related utterances were obtained in breach of the accused’s Charter rights and were excluded under s. 24(2).

The applicant, charged with first-degree murder, brought an omnibus application to exclude evidence under the Charter.

He challenged the validity and execution of a search warrant at his residence, the lawfulness and manner of his arrest, and the admissibility of a photo line-up identification.

The court found that the Information to Obtain the search warrant contained sufficient grounds and that the dynamic entry was justified by the potential presence of a firearm.

The court also held that the police had reasonable grounds for the arrest and did not use excessive force.

Finally, the court ruled that the photo line-up substantially complied with best practices and any flaws went to weight rather than admissibility.

The application was dismissed.

The accused applied to exclude cellular phone subscriber and tower location records obtained by police from a telecommunications provider through an emergency disclosure request without a warrant.

The court held that police had sufficient grounds earlier in the day to obtain a production order and that exigent circumstances under s. 487.11 of the Criminal Code were not established, resulting in a breach of s. 8 of the Charter.

However, applying the framework in Grant, the breach was characterized as technical and conducted in good faith, with minimal impact on the accused’s privacy interests given the narrow scope of the records sought.

Considering the seriousness of the offence and the reliability and importance of the evidence, the court concluded that exclusion would bring the administration of justice into greater disrepute.

The cellular records were therefore admitted pursuant to s. 24(2) of the Charter.

A media coalition applied for an order allowing the publication of certain pre-trial motions in a high-profile first-degree murder case, arguing that the statutory publication ban under s. 648(1) of the Criminal Code should not apply to all pre-trial motions.

The Crown and the accused opposed the application, arguing that s. 648(1) provides a blanket statutory ban on all reporting of any information concerning pre-trial applications brought before the designated trial judge.

The court dismissed the media's application, holding that the statutory ban under s. 648(1) is mandatory and applies to all pre-trial motions adjudicated by the trial judge, whether litigated before or after a jury is selected.

In a first‑degree murder prosecution, the Crown sought to introduce post‑offence conduct evidence relating to the accused’s handling of a toolbox and the use of an incinerator following the alleged killing.

The defence argued the evidence was speculative, highly prejudicial, and equally consistent with non‑culpable explanations.

The court reviewed the governing principles on post‑offence conduct evidence, including the Supreme Court’s guidance that such evidence is a form of circumstantial evidence whose weight is ordinarily for the jury.

The court held that both the toolbox evidence and the incinerator evidence were relevant and capable of supporting reasonable inferences regarding involvement in a culpable homicide.

Any risk of prejudice could be addressed through careful jury instructions.

The accused applied under s. 599(1) of the Criminal Code for a change of venue for a first‑degree murder trial, arguing that extensive pre‑trial publicity and community response in Hamilton had irreparably tainted the local jury pool.

The Crown and the co‑accused opposed the motion, submitting that the presumption favouring trial in the territorial jurisdiction of the alleged offence had not been displaced and that standard jury selection safeguards would ensure fairness.

The court reviewed the nature, extent, and timing of media coverage, including internet and social media discussion, and found that most reporting was factual and not highly prejudicial.

It held that the applicant failed to demonstrate a fair and reasonable probability of prejudice that could not be addressed through the jury selection process.

The motion for a change of venue was dismissed.

Two accused charged with first degree murder applied for judicial interim release under s. 522 of the Criminal Code.

The Crown relied on extensive circumstantial evidence, including surveillance footage, eyewitness accounts of the shooting, cell phone records, and DNA evidence linking the accused’s vehicle to the victim.

The court found the Crown’s case to be overwhelming and concluded there was a high probability of conviction.

The proposed sureties, largely family members, were found inadequate to provide meaningful supervision or ensure compliance with bail conditions.

Detention was ordered on the primary, secondary, and tertiary grounds, including concerns about flight risk, potential interference with the administration of justice, and maintaining public confidence in the justice system.

The accused brought a constitutional application challenging the exclusion of common-law spouses from the spousal incompetency rule in s. 4 of the Canada Evidence Act and the related common law.

The court considered whether the distinction between married spouses and common-law partners violated s. 15(1) of the Canadian Charter of Rights and Freedoms.

Applying evolving equality jurisprudence following Quebec (Attorney General) v. A., the court held that denying common-law partners the protections afforded to married spouses constituted discrimination based on marital status.

The court further concluded that the infringement was not justified under s. 1 of the Charter because excluding common-law spouses was not rationally connected to the objective of protecting conjugal confidences and marital harmony.

The appropriate remedy was to read common-law spouses into s. 4 of the Canada Evidence Act and the common law spousal incompetence rule.

The Crown brought a motion seeking to introduce evidence from several witnesses that would disclose prior criminal conduct and other discreditable acts by the accused in a murder prosecution.

The Crown argued the evidence was relevant to motive, the relationship between the accused and witnesses, and consciousness of guilt, including allegations that the accused plotted to eliminate a key witness.

The court applied the established rule that evidence of disreputable conduct is presumptively inadmissible unless its probative value outweighs its prejudicial effect.

The court held that most of the proposed evidence formed part of the narrative explaining the motive and relationships surrounding the alleged homicide and was therefore admissible with limiting instructions.

Certain evidence, including alleged assaults on a spouse, buried firearms, and an ante‑mortem statement attributed to the deceased, was excluded as marginally relevant and of questionable probative value.

A high school teacher pleaded guilty to sexual exploitation of a 16-year-old student under section 153(a) of the Criminal Code.

The offender engaged in a six-month sexual relationship with the student, involving fondling, mutual oral sex, masturbation, and digital penetration.

The conduct occurred in multiple locations including vehicles, hotel rooms in Italy, and tents in Kenya.

The offender took advantage of the student's vulnerability following her parents' separation and facilitated her deception of her parents to travel to Italy.

The court sentenced the offender to 14 months imprisonment and three years probation, emphasizing the serious breach of trust and the need for denunciation and general deterrence.