Daisy E. McCabe-Lokos

In a jury trial on four counts of first degree murder, the accused brought an evidentiary motion seeking edits to jail telephone intercepts before they were played to the jury.

The court applied a relevance and prejudice-versus-probative-value analysis to disputed passages, holding that most references to custody were admissible because they provided necessary context for the accused's repeated efforts to have another person alter vehicle records and avoid implication in the homicide investigation.

A violent rap lyric was excluded because its prejudicial effect outweighed its minimal probative value, and two words referring to the duration of incarceration were also removed.

The balance of the application was dismissed, with limiting instructions to be given concerning custody and the right to silence.

In a jury trial on four counts of first degree murder arising from three separate shooting incidents, the court determined pre-trial applications concerning cross-count admissibility, extrinsic misconduct evidence, and severance.

The court held that evidence on each count was admissible across counts as circumstantial evidence of possession of the same 9mm firearm, and thus of identity, but not as similar fact evidence because the shootings lacked the requisite striking similarity or objective improbability of coincidence.

The court also admitted selected extrinsic misconduct evidence relating to possession and use of the 9mm and .45 calibre firearms, consciousness of guilt, and the relationship between the accused and a Vetrovec witness, while excluding other highly prejudicial evidence with limited probative value.

Applying the severance factors, including the strong factual and legal nexus among counts, the court concluded that the interests of justice did not require severance.

The appellant appealed convictions for assault with a weapon and assault causing bodily harm arising from a nightclub attack in which the victim was choked and struck in the face with a bottle.

He argued that the trial judge improperly treated his utterances to police, applied uneven scrutiny to the evidence of a key Crown witness and the defence, and misapprehended aspects of the evidence.

The court held that the impugned utterances were used only to assess the credibility of the appellant's claim that he was acting as a peacemaker, that no uneven scrutiny was shown, and that any alleged misapprehensions were peripheral rather than material.

The appeal was dismissed.

The Crown appealed an acquittal on a charge of failing to comply with a recognizance.

The trial judge had excluded the original information and recognizance because the Crown had not provided notice under s. 28 of the Canada Evidence Act.

The appeal court held that judicial documents such as recognizances may be admitted under the common law without notice and that s. 36 of the Act preserves that common law authority.

The court further held that the Crown was not barred from advancing this argument on appeal even though it had not been raised at trial.

The acquittal was quashed and a new trial was ordered.