Daniel Brodsky

The Crown applied under s. 714.1 of the Criminal Code for an order permitting a forensic biologist to testify by video conference at a second-degree murder trial.

The application was brought in light of the COVID-19 pandemic to reduce the risk of virus transmission.

The defence opposed the application, citing concerns about opening the floodgates for remote testimony.

The court allowed the application, finding that remote testimony was appropriate given the pandemic, the non-contentious nature of the expert's credibility, and the benefits to the administration of justice.

During a homicide proceeding, the Crown sought to admit text messages sent from the deceased's phone to her father shortly before her death.

The Crown argued the messages were admissible to show the deceased's state of mind and to help establish the date of death.

The court applied the state of mind exception to the hearsay rule, finding the messages admissible to show the deceased's intention that the accused move out of their shared apartment, and relevant to the date of death.

The accused, charged with second-degree murder, applied to be seated outside the prisoner's dock during jury selection and trial.

He argued that sitting in the dock would reflect negatively on the presumption of innocence and impede interaction with counsel.

The court dismissed the application, holding that the seating of the accused is within the trial judge's discretion and that the customary position in the dock does not violate Charter rights or undermine the presumption of innocence.

During a murder trial, the Crown sought a jury instruction that text messages sent from the victim's phone and handwritten notes left by the accused constituted fabricated evidence.

The court ruled that there was circumstantial evidence allowing the jury to infer the accused sent the text messages after the victim's death to deflect responsibility, which would constitute fabrication.

However, the court found the accused's handwritten denial of involvement did not rise to the level of fabrication and should be assessed under the W.(D.) principles without an adverse inference of fabrication.

The offender was convicted of 17 offences, including criminal harassment, uttering death threats, and extortion against his former common-law partner's family.

The Crown applied to have him designated a Dangerous Offender.

The court found that the predicate offences were serious personal injury offences and that the offender's conduct demonstrated a pattern of repetitive and persistent aggressive behaviour, showing a failure to restrain himself and a substantial degree of indifference to the consequences.

The court designated the offender a Dangerous Offender and, finding that a lesser sentence would not adequately protect the public due to his high risk of reoffending and poor treatability for Delusional Disorder and Antisocial Personality Disorder, imposed an indeterminate sentence.

The accused was charged with first degree murder after strangling his grandmother to death.

The accused suffered from schizophrenia and experienced severe delusions, believing his grandmother was part of a broad conspiracy to kill him.

The court accepted expert psychiatric evidence that the accused's mental illness deprived him of the capacity to know that others would view his conduct as morally wrong.

The accused was found not criminally responsible on account of mental disorder.

The accused, charged with first degree murder, instructed his counsel to disseminate Crown disclosure to the media, alleging his video statement was altered.

Defence counsel sought directions on whether he was bound by an undertaking not to disclose the materials.

The court held that whether or not Crown disclosure is subject to a written undertaking, a deemed undertaking applies restricting its use solely to making full answer and defence in the criminal proceedings.

The application to remove the undertaking was dismissed.

The accused was charged with murder after his grandmother was found dead.

He had presented at a hospital with cuts and a bite mark, claiming his grandmother attacked him.

He made statements to police at the hospital while being treated as a victim, and later gave a video statement at the police station after being arrested and speaking to duty counsel.

On a voir dire, the court found that the statements at the hospital were voluntary and reliable, and that the video statement was voluntary, not the result of oppression or inducements, and not tainted by the earlier statements.

All statements were ruled admissible.

During a multi-accused trial for second-degree murder, counsel for one of the co-accused suggested in his closing address that a witness had 'let the truth slip out' in a prior police statement when she mentioned seeing another co-accused with a knife.

The other co-accused brought an application for a mistrial, arguing the address was highly prejudicial.

The court dismissed the mistrial application, finding that the closing address did not compromise trial fairness and that any potential prejudice could be cured by a strong limiting instruction to the jury regarding the permissible use of prior inconsistent statements.

The accused, charged with second-degree murder, brought an application for a directed verdict of acquittal at the conclusion of the Crown's case.

The moving parties argued that the rule in Hodge's Case should apply to directed verdict applications involving circumstantial evidence.

The court rejected this argument, holding that the test remains whether a properly instructed jury could reasonably convict, which involves only a limited weighing of circumstantial evidence.

Finding sufficient circumstantial evidence of identity and murderous intent for both moving parties, the court dismissed the directed verdict applications.

The accused applied at a retrial to prevent the Crown from adducing evidence that he placed his hands on the complainant’s neck and made threatening statements during the alleged sexual assault.

He argued that issue estoppel barred the Crown from re‑litigating these facts because he had been acquitted of separate charges of choking and uttering threats at the first jury trial.

The court held that issue estoppel only applies where the prior acquittal necessarily resolved the factual issue in the accused’s favour.

Because the earlier jury verdicts could have been based on multiple possible routes to acquittal, it was impossible to determine the precise factual basis for the acquittals.

The doctrine therefore did not prevent the Crown from leading the evidence as part of the complainant’s narrative at the retrial.