David Maylor

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 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.

The accused brought a Charter application seeking to quash search warrants and exclude evidence obtained from searches of his residences and storage lockers, alleging police misconduct and fabrication of information in the Informations to Obtain (ITOs).

The court rejected the defence theory that police had planted firearms and drugs, finding the accused’s explanation for the incriminating evidence implausible.

However, the court found that the affiant officer deliberately fabricated portions of the ITO, including altering dates and inventing information to strengthen the grounds for the warrants.

Although the remaining evidence could have supported the issuance of the warrants, the deliberate fabrication was found to be so subversive of the prior authorization process that the warrants were quashed.

Applying the framework in Grant, the court excluded the seized guns, drugs, and related evidence under s.24(2) of the Charter due to the seriousness of the police misconduct, while admitting the accused’s voluntary statements to police.

The applicant brought a Charter application seeking a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay in bringing serious firearms and drug charges to trial.

The court analyzed multiple periods of delay totaling approximately 57 months from arrest to the anticipated trial start, allocating time among inherent case requirements, defence delay, Crown delay, and institutional delay.

Although the applicant had been incarcerated for most of the period and experienced prejudice to liberty and security interests, the court found that most delay resulted from defence actions or inherent case complexity, including counsel availability and pre-trial litigation.

Institutional and Crown delay totaled approximately 11.5 months, falling within the acceptable Morin guidelines.

The court concluded that the delay was not unreasonable and that the applicant’s right to a fair trial had not been prejudiced.