Daniel J. 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 three appellants were convicted of second-degree murder following a brutal group attack on the victim, who was beaten and stabbed.

They appealed their convictions on several grounds, including the trial judge's instructions on co-principal liability and the mens rea for murder, evidentiary rulings regarding prior inconsistent statements, and the refusal to give an Oliver instruction for a co-accused.

One appellant also appealed her 12-year parole ineligibility period.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's jury instructions or evidentiary rulings, and upholding the sentence as fit.

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 pleaded guilty to multiple offences including assault with weapon, forcible confinement, and assault causing bodily harm arising from a pattern of domestic violence against his intimate partner over seven years.

The Crown sought a dangerous offender designation.

The court declined to designate the accused as a dangerous offender, finding that his violent conduct was not intractable and that there was a realistic possibility of eventual control in the community through intensive treatment offered by Corrections Canada.

The court instead designated him as a long-term offender and imposed a sentence of three years imprisonment followed by a ten-year long-term supervision order with conditions including dialectical behaviour therapy, substance abuse counselling, and intimate partner violence counselling.

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.

The appellant was convicted of breaking into and assaulting a 68-year-old woman and breaking into and raping a 54-year-old woman.

He was declared a dangerous offender and sentenced to an indeterminate term.

On appeal, the appellant challenged the admission of DNA evidence obtained through a saliva sample, arguing his Charter rights were violated.

He also challenged the trial judge's failure to preserve evidence and appealed his indeterminate sentence.

The Court of Appeal dismissed all grounds of appeal, finding no Charter violations in the DNA seizure, that the trial judge properly exercised her discretion regarding the destroyed evidence, and that the indeterminate sentence was appropriate given the appellant's high risk of reoffending and consistent refusal to engage in treatment.

The appellant appealed his dangerous offender designation imposed by the trial judge on January 15, 2013.

The Court of Appeal upheld the designation, finding that the trial judge properly applied the test under s. 753 of the Criminal Code.

The trial judge found that the appellant met the criteria for dangerous offender status based on a pattern of repetitive behaviour showing a failure to restrain his conduct, and that this failure created a likelihood of causing injury to others.

The trial judge also found a pattern of persistent aggressive behaviour demonstrating substantial indifference to the foreseeable consequences of his actions.

The trial judge exercised her discretion to reject the long-term offender designation, concluding that the public threat could not be reduced to an acceptable level through a determinate sentence or long-term supervision order.

The Court of Appeal found the trial judge's findings were open to her on the record and entitled to deference, and her determination was reasonable.

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 appellants were convicted of kidnapping, extortion, and assault following a home invasion involving sexual assault and confinement.

They appealed their respective sentences of 13 and 12 years' imprisonment, arguing the trial judge failed to consider mitigating factors and the parity principle.

The Court of Appeal dismissed the appeals, finding the sentences fit given the heinous nature of the crimes and the trial judge's proper application of sentencing principles, including denunciation and deterrence.

Nancy Gandhi brought a s. 11(b) Charter application alleging a violation of her right to be tried within a reasonable time.

The total delay from charge to anticipated trial end was 35 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court deducted 33 weeks (approximately 8 months) of delay attributable to the defence, including periods of explicit waiver, counsel unavailability, and change of counsel.

This reduced the net delay to just over 27 months, falling below the presumptive ceiling.

Applying the Jordan framework and its transitional approach, the court found no s. 11(b) violation, as the defence did not demonstrate a sustained effort to expedite proceedings, and the delay was not markedly longer than reasonably required under the prior Morin framework.

The application was dismissed, and the case was ordered to proceed to trial.

The Crown brought a pre-trial motion to admit similar fact evidence of the accused's prior manslaughter conviction in a first-degree murder trial.

The court applied the R. v. Handy framework, balancing the probative value of the evidence against its prejudicial effect.

While some similarities existed between the current murder charge and the prior manslaughter (gambling debt, use of a meat cleaver), the court found significant dissimilarities in the circumstances and a substantial time gap of over 13 years.

The court determined that the evidence's probative value on issues such as situation-specific propensity, planning, intent, mental disorder, accident, or self-defence was insufficient to outweigh the profound moral and reasoning prejudice to the accused.

The Crown's application was dismissed, and the similar fact evidence was deemed inadmissible.

The appellant appealed his conviction for historical sexual assault.

The Court of Appeal found that the trial judge made two reversible errors: drawing an adverse inference from the appellant's pre-trial silence, and using a co-accused's guilty plea to corroborate the complainant's evidence.

Given that the case turned on credibility, these errors were fatal to the conviction.

The appeal was allowed and a new trial ordered.

The applicant brought a motion in the Superior Court of Justice to strike a previously entered guilty plea for sexual assault and related offences.

In support of the motion, the applicant filed an affidavit alleging that former counsel pressured him to plead guilty and provided incorrect advice.

The Crown sought an affidavit from former counsel responding to those allegations, raising a dispute over whether portions of the affidavit were protected by solicitor-client privilege.

The court held that where a client alleges misconduct or breach of duty by counsel, privilege is waived to the extent necessary for counsel to respond fairly.

The impugned paragraphs of the former counsel’s affidavit were found relevant to the allegations and were permitted to remain, subject only to a minor agreed deletion.

The accused pleaded guilty to multiple offences, including sexual assault, physical assault, and break and enter, committed against his intimate partner over several years.

The court accepted a joint submission for a global sentence of seven years' imprisonment.

After applying credit for pre-sentence custody, the accused was sentenced to 33 months in the penitentiary, along with ancillary orders including a DNA order, a lifetime SOIRA order, a weapons prohibition, and a non-communication order.