Christopher J. Nowlin

The Crown appealed after the British Columbia Court of Appeal set aside a second degree murder conviction, holding that hearsay testimony from the accused's brother regarding an overheard phone call in which the accused admitted to killing the victim was inadmissible.

The majority of the Supreme Court of Canada held that the trial judge did not err in admitting the brother's testimony as a party admission: the evidence was capable of non-speculative meaning and thus relevant, it fell within the party admission exception to the hearsay exclusionary rule, and the trial judge did not err in the discretionary balancing of probative value against prejudicial effect.

The Court also held there was no error in the trial judge's answer to the jury's mid-deliberation question regarding the definition of bodily harm.

The dissenters agreed with the majority's analytical framework but concluded that, on the facts, assessing the relevance of the overheard statements was an exercise in pure speculation and the evidence should not have been admitted.

On a criminal appeal from a conviction for dangerous driving causing death, the Court addressed the fault element required beyond proof of objectively dangerous driving.

The Court held that actus reus alone cannot ground an inference of the marked-departure mens rea and that triers must conduct a meaningful inquiry into whether a reasonable person would have foreseen and avoided the risk.

It found legal error where the trial reasons effectively inferred marked departure from dangerous driving and from the absence of an exculpatory explanation.

The Court further held the appellate proviso was unavailable because the evidentiary record did not make conviction inevitable.

The conviction was set aside and an acquittal entered.

The appellant was arrested for multiple assaults and asserted his right to counsel.

After failing to reach his lawyer of choice, he consulted with duty counsel and expressed satisfaction with the advice.

During the subsequent police interrogation, he repeatedly requested to speak with a lawyer and have one present, but the police denied these requests and continued questioning until he confessed.

The Supreme Court of Canada dismissed the appeal, holding that s. 10(b) of the Charter does not require the presence of counsel during an interrogation, nor does it require police to provide further opportunities to consult counsel absent a change in circumstances.