David Gary Bayliss

During a lengthy jury trial for murder and attempted murder arising from a home invasion, the court ruled on several pre‑charge issues affecting the jury instructions and evidentiary materials.

The court addressed whether transcripts of recorded police statements should accompany the jury, whether certain medical records required redaction, and whether instructions on wilful blindness and alternative routes to first‑degree murder should be given.

The court allowed transcripts of most recorded statements to go to the jury but excluded the transcript of one accused’s statement due to lack of probative value.

Medical records referring to “severe hypoxia” were admitted without redaction.

The court declined to instruct the jury on wilful blindness for the driver accused, finding insufficient specificity of suspicion to impute knowledge.

During a jury trial for first degree murder arising from a home invasion robbery, the accused sought to introduce an excerpt from an audio-recorded statement he made to police while being transported after arrest.

The Crown objected, arguing the excerpt constituted an inadmissible prior consistent statement.

The court reviewed the governing principles regarding prior consistent statements, including the recognized exceptions and the principled exception articulated in appellate jurisprudence permitting admission of spontaneous exculpatory reactions when an accused is first confronted with an accusation.

Considering the circumstances of the transport conversation, including the investigative questioning designed to startle the accused and the contextual uncertainty regarding spontaneity, the court concluded the statement should be admitted.

The jury would be instructed that the statement was not admitted for the truth of its contents but could be considered as circumstantial evidence of the accused’s state of mind and reaction when confronted with evidence of involvement.

During a multi-accused jury trial for murder and attempted murder arising from a home invasion, the Crown sought to revisit a pre‑trial editing ruling that had excluded a portion of one accused’s police statement referencing a conversation with a co‑accused driver.

The Crown argued that subsequent cross‑examination created a material change in circumstances because the witness acknowledged misleading the driver about the purpose of the trip, making the excluded statement relevant as a prior inconsistent statement and to credibility.

The court held that the threshold for revisiting the ruling was met but declined to change the original decision.

Although the probative value of the statement had increased, its prejudicial effect against the co‑accused—against whom it remained inadmissible—continued to outweigh its value, particularly given the stage of the trial and fairness concerns.

The Crown’s application was therefore dismissed.

During a jury trial for murder arising from a home invasion, the accused sought to call a cardiologist to testify that a congenital heart condition could have caused hypoxia leading to confusion and impaired cognition during the incident.

The Crown opposed the evidence, arguing it lacked relevance, necessity, and proper qualification and risked misleading the jury.

Applying the Mohan framework as refined in White Burgess and Abbey, the court held the proposed expert testimony was logically relevant, necessary to explain the accused’s serious medical condition, and within the expert’s qualifications.

The court further concluded that any limitations in the opinion affected weight rather than admissibility and that the probative value of the defence-led evidence was not substantially outweighed by prejudice.

The expert evidence was therefore admitted for consideration by the jury.

During a jury trial for murder and attempted murder arising from a home invasion, the accused sought to call a cardiologist to provide expert evidence regarding congenital heart disease and its potential impact on mental functioning.

The Crown challenged the admissibility of the expert testimony, arguing issues of relevance, qualification, and reliability under the Mohan framework.

The court determined that a focused Mohan voir dire was required to clarify the precise opinion and assess the expert’s qualifications.

The judge held that the expert could testify on the voir dire only to identify the proposed opinion and establish qualifications, and that broader cross-examination was unnecessary for the admissibility determination.

During a jury trial for offences arising from a home invasion and robbery, the Crown sought to revisit a prior evidentiary ruling that had ordered references to the accused’s consultation with duty counsel removed from a police statement.

The Crown argued that subsequent testimony placing the reliability of the statement in issue increased the probative value of the fact that the accused had received legal advice before speaking to police.

The court reconsidered the issue under the residual discretion to exclude evidence where prejudicial effect outweighs probative value.

The judge held that the probative value of the consultation with counsel remained slight and that admitting the evidence would invite improper speculation about privileged communications.

The earlier ruling requiring redaction was therefore maintained.

In a jury trial for murder and attempted murder arising from a violent home invasion, the Crown challenged the sufficiency of a defence expert report disclosed under s. 657.3(3) of the Criminal Code.

The defence intended to call a cardiologist to testify about the accused’s congenital heart disease and the possible cognitive effects of exertion‑induced hypoxia, which could raise a reasonable doubt about the specific intent required for murder.

The court held that the report provided sufficient disclosure of the expert’s anticipated areas of evidence and the grounds underlying them, though it did not disclose the expert’s ultimate opinion regarding the accused’s symptoms at the time of the offences.

Considering the advanced stage and logistical constraints of the lengthy jury trial, the court declined to order further particulars or other remedial measures.

The issue of the expert’s qualifications to testify about hypoxia‑related cognitive effects was left to a focused Mohan voir dire.

During a murder and attempted murder trial arising from a home invasion, defence counsel alleged that Crown counsel improperly asked a co‑accused witness questions without a good faith basis during cross‑examination.

The defence argued that certain suggestions put to the witness regarding clothing worn during the offence and the cause of injuries to the surviving victim were speculative and inconsistent with the evidentiary record.

The court applied the Supreme Court of Canada’s guidance in R. v. Lyttle on the scope of permissible cross‑examination and the meaning of a good faith basis.

The judge concluded that the Crown’s questions were grounded in reasonable inference drawn from the available evidence.

Accordingly, the court declined to take any remedial steps.

In a jury trial for first degree murder and attempted murder arising from a home invasion, the accused brought applications for directed verdicts at the close of the Crown’s case.

They argued the circumstantial evidence was insufficient to support inferences of planning and deliberation or the requisite intent for murder and attempted murder, and that the rule in Hodge’s Case required exclusion of those theories.

The court held that the governing test on a directed verdict motion is whether there is any evidence upon which a properly instructed jury could reasonably convict, and that the rule in Hodge’s Case does not apply at this stage.

The court found there was evidence capable of supporting inferences that the killing was planned and deliberate and that the accused participated with the necessary intent.

However, the Crown was barred from advancing second degree murder liability against the driver under the common unlawful purpose doctrine due to insufficient evidence of subjective foresight of death.

During a murder trial involving a home invasion, defence counsel for one of the co-accused sought to create a summary chart of a key Crown witness's testimony on an easel pad during cross-examination.

The Crown and counsel for another co-accused objected, arguing the chart was unnecessary, cumulative, and potentially misleading.

The court allowed the use of the demonstrative aid, finding that it was a useful organizational tool, met threshold reliability, and its probative value was not substantially outweighed by any trial management or trial fairness prejudice.

During a multi‑accused murder trial, the jury sent a note expressing concerns about safety after observing three men enter the courtroom whom they believed might be connected to the accused.

Defence counsel argued the note suggested potential racial bias or juror fear that could compromise impartiality and requested a jury inquiry.

The court conducted a focused inquiry questioning each juror individually about what they observed, whether they had concerns, whether race influenced their reaction, and whether they could remain impartial.

All jurors confirmed they had no concerns and could continue to decide the case solely on the evidence and legal instructions.

The court concluded the presumption of juror impartiality had not been rebutted and refused defence requests for a further inquiry.

In a jury murder trial arising from a planned robbery, the court ruled on the admissibility of text messages extracted from two accused persons' cell phones.

Applying the principles governing relevance, bad character evidence, and the balance between probative value and prejudicial effect, the court excluded one partial text exchange as too context-deficient and speculative to support the inference urged by the Crown.

Two other exchanges, accepted for the purpose of the ruling as drug-related communications, were admitted because their prejudice was minimal in the trial context and they provided relevant contextual evidence about the relationship between two accused.

The court directed that limiting instructions would address any propensity risk.

In a joint trial for first-degree murder arising from a home invasion, the co-accused applied to redact portions of two videotaped police statements made by two of the accused.

The applicants argued that the statements contained inadmissible hearsay that was highly prejudicial to the non-makers.

The court applied the principles for editing co-accused statements, balancing the probative value of the narrative context against the prejudicial effect.

The court ordered the redaction of gratuitous police comments, irrelevant bad character evidence, and highly prejudicial post-offence conduct (wiping a coffee cup), but retained the core narrative descriptions of the events, holding that limiting instructions would adequately protect the co-accused.

The accused was charged with unlawfully importing cocaine into Canada after arriving at Pearson International Airport from Jamaica with cocaine dissolved in two bottles of ginger wine.

The accused claimed she was an innocent blind courier who had been set up by an acquaintance who paid for her trip.

The court rejected her exculpatory evidence as implausible, noting her financial distress, the high value of the drugs, and inconsistencies in her testimony.

Applying the W.(D.) framework and principles of circumstantial evidence, the court found beyond a reasonable doubt that the accused knew she was importing a prohibited substance and found her guilty.

The accused was charged with possession of a prohibited weapon without authorization, two counts of possession of a prohibited weapon, careless storage of a firearm, careless storage of ammunition, possession of a firearm obtained by an indictable offence, and possession of a firearm with its serial number defaced.

A .32 calibre silver revolver with three live rounds and a spent shell casing were discovered during a search warrant execution at the accused's apartment.

The accused challenged committal for trial, arguing insufficient evidence of knowledge, a material element of possession.

The court found the evidence circumstantial and sparse, with equally plausible inferences available regarding knowledge by either the accused or a third party with regular access to the apartment.

The court discharged the accused, finding the Crown failed to meet the threshold for committal.

The offender was sentenced after a jury convicted him of multiple firearm and drug offences, including possession of restricted and prohibited handguns with ammunition, possession of cocaine for the purpose of trafficking, possession of heroin, and possession of proceeds of crime.

The offender committed the offences while subject to multiple lifetime firearm prohibition orders and while on probation, and had an extensive prior record involving firearms and drug trafficking.

The court emphasized denunciation, deterrence, and public protection, noting the offender’s escalating pattern of reoffending and mid‑level cocaine trafficking involving over one kilogram of drugs.

Applying the totality principle, the court imposed a global sentence of ten and one‑half years’ imprisonment for firearms, trafficking, and related offences.

Enhanced credit of 1.5:1 was granted for pre‑sentence custody pursuant to the Supreme Court of Canada’s guidance in Summers.

During a judge‑alone criminal trial, the accused applied for a directed verdict of acquittal after the Crown closed its case.

Police executing a search warrant at an apartment discovered a loaded restricted firearm hidden inside a couch cushion and quantities of cocaine and marihuana elsewhere in the unit.

The accused was present in the living room but was not a resident of the apartment, which was leased to another individual.

The court held that the circumstantial evidence could not reasonably support inferences of knowledge or control over the firearm or drugs, which were either hidden or insufficiently connected to the accused beyond proximity.

As a result, the evidence was incapable of supporting convictions for possession of the firearm or drugs for the purpose of trafficking.

The accused brought a Garofoli application challenging the validity of a search warrant that led to the seizure of firearms and narcotics, alleging breaches of s. 8 of the Canadian Charter of Rights and Freedoms and seeking exclusion of the evidence under s. 24(2).

The dispute focused on the procedural steps governing redactions of the information to obtain (ITO), the role of judicial summaries, and whether the Crown must elect between relying on the redacted ITO or the original unredacted ITO.

The court held that judicial summaries at steps two and six of the Garofoli procedure are not evidence but procedural tools designed to allow meaningful participation by the accused where disclosure must be limited to protect a confidential informant.

The court further held that steps five and six are sequential rather than mutually exclusive, allowing the Crown to first rely on the redacted ITO and, if necessary, subsequently seek to rely on the unredacted ITO.

Procedural directions were issued to govern the conduct of the Garofoli hearing prior to trial.

The accused applied for judicial interim release under s. 522 of the Criminal Code after being charged with first-degree murder arising from a drive-by shooting that killed a bystander.

Because the charge was a s. 469 offence, the application proceeded on a reverse onus.

The court found no significant risk on the primary or secondary grounds, emphasizing the accused’s lack of criminal record, educational background, community ties, and voluntary surrender to police shortly after the incident.

On the tertiary ground, the court concluded that although the offence was extremely serious, the strength of the Crown’s case on the accused’s prior knowledge of the shooting was not overwhelming and multiple reasonable inferences remained available.

Given the proposed stringent surety plan and the accused’s circumstances, the court held that public confidence in the administration of justice would not be undermined by release.

The accused brought a pre‑trial disclosure motion seeking police disciplinary records under McNeil and additional confidential informant materials under Stinchcombe in relation to a search warrant that resulted in the seizure of firearms and drugs.

The court held that the accused failed to establish any evidentiary basis that McNeil records existed regarding the investigating officers and declined to compel production.

A subpoena issued to the Chief of Police seeking disciplinary materials was quashed as improperly issued because there was no basis to conclude it would produce material evidence.

Most requested disclosure regarding the confidential informant was denied due to informant privilege and lack of relevance beyond the investigative file.

However, the Crown was ordered to disclose a properly redacted copy of the original Information to Obtain rather than an edited version.