David E. Harris

The accused, S.P., was charged with sexual assault and sexual touching against his stepdaughter, B.V. The allegations involved inappropriate touching over clothing in B.V.'s bedroom, a 'spooning' incident on a couch, and an unduly long hug during a vacation.

The court assessed the credibility and reliability of both the complainant and the accused, noting inconsistencies in B.V.'s disclosure process and K.M.'s testimony, as well as the accused's questionable explanations for his conduct.

Applying the standard of proof beyond a reasonable doubt, the court found that the Crown had not met its burden, emphasizing that the mere fact of a complaint does not boost the Crown's case and that the 'believe the victim' slogan has no place in a criminal trial.

The charges were dismissed, and acquittals were entered.

The applicant, Tevin Wheatley, sought a bail review under section 520 of the Criminal Code after his detention was ordered due to breaching previous bail conditions related to serious human trafficking and dangerous driving charges.

The review was premised on a material change in circumstances: the presentation of a new surety (Minister Brenda Clarke) and a plan incorporating GPS electronic monitoring.

The court considered the admissibility of the new evidence under the modified Palmer criteria as per R. v. St. Cloud.

The judge found the new surety and GPS monitoring sufficiently mitigated the secondary (public safety) and tertiary (confidence in the administration of justice) grounds for detention.

Consequently, the applicant was released on a $5,000 recognizance with strict conditions, including GPS monitoring, residency with the surety, and restrictions on phone/internet use and travel.

In a second-degree murder trial, the Crown applied to admit evidence of the accused's prior discreditable conduct to prove the mental element for murder, as the defence conceded the act of killing but disputed intent.

Applying the R. v. Handy framework, the court ruled that evidence from a long-time friend of the deceased (Ms. Dindyal) detailing the troubled mother-son relationship, disrespect, and property damage was admissible.

This evidence provided necessary context for the accused's mental state and the "reservoir of anger" leading to the killing.

However, 911 calls and testimony from other witnesses (Mr. Peters, Ms. Vella, Ms. Allen) were deemed inadmissible due to being too remote in time (accused was an adolescent), lacking sufficient probative value, or being cumulative and overly prejudicial.

The court emphasized balancing the need for historical context against the risk of prejudice, particularly from cumulative evidence.

This ruling addresses a Browne and Dunn argument made by the Crown in closing addresses during a murder trial where the accused was convicted of manslaughter.

The judge provided a mild corrective instruction to the jury, explaining that counsel cannot argue Browne and Dunn to the jury without first raising it with the trial judge.

The judge found that in this specific case, no actual Browne and Dunn violation occurred as there was no ambush or surprise in the defence evidence.

The ruling concluded that the Crown's misstep caused no lasting harm given the jury's verdict of manslaughter.

The plaintiff sued his sisters-in-law for defamation based on a document alleging a preposterous sexual proposition and inappropriate behavior.

The defendants were noted in default.

The court dismissed the action, finding that the statements were not defamatory in the eyes of a reasonable person, given the context of a family dispute, and that the plaintiff's reaction was disproportionate.

The court also expressed doubts about the publication of the statements due to reliance on inadmissible hearsay and the plaintiff's credibility.

This decision contains pre-charge rulings in a criminal trial involving charges of robbery, kidnapping, and attempted murder against David Kawal and co-accused.

The court addressed three issues: the admissibility of consciousness of guilt evidence, a directed verdict application for one of the attempted murder charges against Kawal, and an alternative suspect application.

The court ruled that the consciousness of guilt evidence (cell phone sim card change) was inadmissible due to its low probative value and high prejudicial effect.

It granted a directed verdict of acquittal for Kawal on the attempted murder of Mohammed Ibrahim, finding that the act was not a probable consequence of the common criminal purpose.

Finally, the court allowed the defence to pursue an alternative suspect (Q.H.) for the shooting of Officer Alwyn, finding sufficient admissible evidence to lend an "air of reality" to this defence.

The offender was convicted of manslaughter for stabbing his half-brother during a fist fight.

The deceased initiated the physical altercation, but the offender escalated it by using a knife.

The court found the offender's actions were primarily for self-defence but disproportionate.

Considering the offender's remorse, the context of the fight, and the need for denunciation and individual deterrence, the court imposed a sentence of 6 years incarceration.

After applying credit for pre-sentence custody, the net sentence was 15 months, followed by 3 years of probation.

Three offenders were convicted of manslaughter following a botched home invasion robbery targeting a drug dealer.

The offenders planned to use extreme violence, bringing weapons and gasoline, but mistakenly encountered the target's brother, who was stabbed to death by one of the offenders.

The court found the offence to be an aggravated manslaughter due to the high degree of planning, the home invasion context, and the extreme violence intended.

The court sentenced the stabber to 13 years and the other two offenders to 11 years, less credit for pre-trial custody.

Requests for enhanced credit due to lockdown conditions were denied for lack of evidence of detrimental impact.

The accused, charged with kidnapping, robbery, and attempted murder, applied under s. 7 and s. 24(2) of the Charter to exclude statements he made to undercover police officers placed in his cell after his arrest.

The accused had previously exercised his right to silence.

The court applied the Hebert framework and found that the undercover officers did not actively elicit the statements or engage in the functional equivalent of an interrogation.

The accused spoke voluntarily and freely to his cellmates.

The application to exclude the statements was dismissed.

On a Crown evidentiary motion in a joint criminal trial, the court considered whether parole-source evidence linking one accused to a cell phone and related biographical information was admissible.

The court held the evidence had high probative value because the cell tower data was a major pillar of the Crown case and the accused's likely possession of the phone was a key circumstantial link.

Although the evidence carried some moral prejudice by revealing the accused was on parole, the jury would not learn the underlying offences and a limiting instruction could reduce prejudice.

The court rejected the Crown's submission that anticipated character attacks on a complainant supported admission, but still ruled the evidence admissible and encouraged counsel to prepare an agreed statement of facts to minimize prejudice.

The appellant appealed his conviction for dangerous driving, arguing that the trial judge failed to provide adequate reasons by not resolving evidentiary conflicts regarding his speed, the duration of the police pursuit, his lane position, and the presence of pedestrians.

The Summary Conviction Appeal Court dismissed the appeal, finding that the evidentiary conflicts were insignificant in the context of the formidable Crown case.

The trial judge's conclusion that driving at night on the shoulder of a major highway past stopped traffic constituted a marked departure from the standard of a reasonable driver was well-supported and the path to this conclusion was clear.

The accused applied to sever two sets of human trafficking and related charges involving two different complainants, arguing that a joint trial would be prejudicial.

The court dismissed the application, finding a sufficient factual and legal nexus between the allegations and that a similar fact application by the Crown was viable.

The court concluded that the public interest in a joint trial outweighed the potential prejudice to the accused.

The applicant, charged with child pornography offences, brought a Charter application to exclude evidence obtained from a search of his home and digital devices.

The search warrant was obtained using subscriber information linked to an IP address provided by an ISP prior to the Supreme Court's decision in R. v. Spencer.

The court found that while the search violated section 8 of the Charter, the evidence should not be excluded under section 24(2) because the police acted in good faith reliance on the law as it existed at the time.

The court also dismissed arguments that the warrant lacked reasonable grounds, failed to specify computers, and was executed unreasonably.

The applicant applied for a stay of proceedings, alleging a violation of his right to a trial within a reasonable time under s. 11(b) of the Charter.

The global delay was 33 months and 6 days.

The court found that a significant portion of the delay was caused by the applicant's own conduct, specifically breaching his bail conditions and intimidating the complainant, which necessitated new disclosure and an adjournment.

After subtracting the defence-caused delay, the net delay fell below the Jordan presumptive ceiling.

The application for a stay was dismissed.

During a trial for possession for the purpose of trafficking, the Crown applied to admit expert opinion evidence from a police officer regarding whether the accused's possession of Oxycodone and fentanyl patches was for the purpose of trafficking.

The court ruled the evidence inadmissible.

The officer's opinion on the Oxycodone lacked probative value because he conceded the quantity was equally consistent with legitimate prescription use as with trafficking.

Regarding the fentanyl, the court found the officer lacked the necessary medical knowledge and experience with prescription patterns to provide a reliable expert opinion, noting that a doctor or pharmacist would be the appropriate expert.

In an addendum to the original reasons for judgment, the court clarified that consent was not a defence in law to the charges of sexual assault and sexual interference.

Because the complainant was 14 years old and the accused was 21, the age difference exceeded five years, triggering the application of section 150.1(2.1) of the Criminal Code.

The applicant, charged with first degree murder following a fatal stabbing, applied for bail.

The Crown conceded the primary ground but opposed release on the secondary and tertiary grounds.

The court found the proposed release plan, involving three sureties, house arrest, and electronic monitoring, addressed secondary ground concerns.

On the tertiary ground, the court noted the Crown's case for first degree murder was non-existent and the case for second degree murder was mediocre, while the case for manslaughter was strong.

Given the applicant's youth, lack of criminal record, and the weakness of the murder charge, the court granted bail with a $300,000 pledge.

The appellants appealed a Small Claims Court decision ordering them to pay the balance of a landscaping contract.

They argued the trial judge prejudged the case and improperly excluded the appellant husband from the courtroom during the plaintiff's evidence.

The Divisional Court found that the trial judge's preliminary comments raised a realistic concern of bias and that excluding a party without a request from opposing counsel violated Rule 52.06 of the Rules of Civil Procedure.

Concluding that these errors created an appearance of unfairness and a miscarriage of justice, the court allowed the appeal and ordered a new trial.

The appellants appealed a Small Claims Court decision ordering them to pay the final installment for a patio construction contract.

They argued the trial judge prejudged the case and erred by excluding the appellant husband from the courtroom during the respondent's testimony.

The Superior Court of Justice allowed the appeal, finding that the trial judge's preliminary comments and the arbitrary exclusion of a party in violation of Rule 52.06 created an appearance of unfairness.

A new trial was ordered.

The Crown applied to admit the accused's statement to police as voluntary.

The accused had asserted his right to silence, but the interviewing officer made two improper inducements: suggesting the accused might not be charged if he gave his side of the story, and stating that an early explanation would be more credible to a judge than a later one presented by a lawyer.

The court found these inducements to be false and a direct assault on the accused's right to silence.

Despite the Crown arguing that the statement was prompted by the presentation of Snapchats, the court concluded that the inducements were significant and contributed to the accused's decision to speak.

Consequently, the statement was ruled inadmissible as the Crown failed to prove its voluntariness beyond a reasonable doubt.