David N. Tice

Following a guilty verdict for first-degree murder, the applicants sought a factual inquiry and a mistrial after discovering that a juror had cycled past the murder scene and posted about it on a fitness app during deliberations.

The court declined to conduct the inquiry, finding that the evidence was sufficiently preserved for an appeal and that questioning the juror about the impact of the visit would violate the secrecy of jury deliberations.

The court also dismissed the mistrial application, concluding that the physical layout of the scene was not central to the main issue of identity, was already well-documented in evidence, and did not result in a miscarriage of justice.

The offender was sentenced after trial convictions for trafficking a person under 18, deriving a material benefit from trafficking, uttering threats, and assault causing bodily harm arising from prolonged sexual exploitation and violence against a vulnerable teenage complainant.

The court held that, on the offender’s own facts, a sentence above five years was fit, but nevertheless found the five-year mandatory minimum in s. 279.011(1)(b) of the Criminal Code unconstitutional under s. 12 of the Charter because reasonably foreseeable hypotheticals could produce grossly disproportionate sentences.

Applying the Nur/Lloyd framework and considering proposed hypotheticals, the court concluded the provision cast too wide a net and could not be saved under s. 1, particularly in the absence of Crown argument on justification.

The offender received 5.5 years’ imprisonment on the trafficking count after 12 months’ credit, with concurrent sentences on the remaining counts and ancillary orders.

The accused, charged with first degree murder, brought pre-trial applications alleging abuse of process and seeking to adduce hearsay and alternate suspect evidence.

They argued the Crown preferred a direct indictment for an oblique purpose to shield a key witness from discovery, and sought disclosure of the materials provided to the Attorney General.

The court dismissed the abuse of process application, finding no evidence of bad faith or improper motive to displace the presumption that prosecutorial discretion was exercised properly.

The court also dismissed the hearsay application and provisionally dismissed the alternate suspect application, finding the proposed evidence lacked a sufficient connection to the crime and its prejudicial effect vastly outweighed any probative value.

During a trial for first degree murder, the applicant sought to preclude the Crown from asking the principal witness to identify him in the dock.

The applicant argued the identification had trifling probative value and was dangerously prejudicial because the witness was intoxicated and the prior photo identification was flawed.

The court dismissed the application, holding that in-dock identifications are presumptively admissible and that any frailties in the evidence are matters of weight for the jury to assess following cross-examination and proper jury instructions.

The applicant, Shakiyl Shaw, on trial for first-degree murder, sought a directed verdict of acquittal on the murder charge at the close of the Crown's case, requesting the jury only deliberate on manslaughter.

The court dismissed the application, finding that there was sufficient circumstantial evidence upon which a reasonable jury, properly instructed, could infer that the applicant knew his co-accused were armed and intended to shoot someone, and that the murder was planned and deliberate, thereby making him liable as a secondary party to murder.

The applicants, charged with first-degree murder, brought a motion for a mistrial during their jury trial.

The application was based on two incidents: an altercation in the courthouse foyer where the deceased's mother verbally accosted the accused's mother in the jury's presence, and a prior CTV interview given by the deceased's mother.

The court dismissed the application, finding that neither incident created a "real danger of prejudice or a risk of a miscarriage of justice." The judge determined that the jury was intelligent and capable of impartiality, and that a strong judicial instruction would suffice to mitigate any potential impact.

Practical considerations regarding the difficulty and delay of selecting a new jury also factored into the decision.

The applicants, charged with first-degree murder, brought an application seeking a remedy for lost telecommunications records from Freedom Mobile Inc. The police failed to preserve these potentially exculpatory records due to unacceptable negligence, specifically an erroneous belief about Freedom Mobile's affiliation with Rogers and its data retention policy.

The court found a breach of the applicants' s. 7 Charter rights but determined that a stay of proceedings was not appropriate.

Instead, the court ordered a strong jury instruction (Bero instruction) as a sufficient remedy, acknowledging the high relevance of the lost evidence but its indeterminate utility.

The applicant, Lenneil Shaw, sought to redact entries from a phone download report, arguing they constituted inadmissible hearsay and lacked sufficient authentication to link certain phone calls to him.

The report associated a phone number with the contact name "Dozey," a nickname for Lenneil Shaw, and showed calls to a Crown witness's phone near the time of a homicide.

The court dismissed the application, finding that the report contained no implied assertion of who made the calls, but rather presented circumstantial facts relevant to linking the accused to the witness.

The court held that the evidence was admissible for the fact that calls were made, not their substance, and that it met the threshold for relevance, even if it admitted competing inferences.

The offender was found guilty by a jury of aggravated assault after stabbing the victim twice in the back with a large knife in an unprovoked attack.

He was also found guilty of two counts of failing to comply with a probation order.

The court considered the offender's serious criminal record, his difficult upbringing, and his Aboriginal background under Gladue principles.

The court sentenced the offender to 5 years' imprisonment for the aggravated assault and 9 months concurrent for the probation breaches, less credit for pre-sentence custody, resulting in a net sentence of 1 year and 102 days.

The accused was tried for attempted murder and aggravated assault following a stabbing in an apartment building.

During the trial, the accused brought an application for a stay of proceedings, arguing that his section 7 Charter rights were violated because the police failed to seize and preserve video surveillance footage from the building's lobby.

The court dismissed the application, finding that the police were not unacceptably negligent as they had no reason to believe the lobby video was relevant until months later.

Furthermore, the defence knew of the video's existence from the outset but took no steps to obtain it, and the video would not have captured the actual altercation.

The accused applied for a bail review after being denied release on secondary and tertiary grounds following his arrest for firearms, assault, and theft charges.

The accused proposed his mother and uncle as sureties.

The reviewing judge found the proposed plan of supervision was weak, given the sureties' lack of knowledge about the accused's activities, substance abuse issues, and the seriousness of the charges.

The court concluded that detention remained justified on both secondary and tertiary grounds, and dismissed the application.

The accused applied to exclude a DNA sample obtained under a Criminal Code warrant in a first degree murder prosecution, arguing that the issuing justice acted unfairly by refusing to permit defence submissions before issuing the warrant.

The court held that s. 487.05 contemplates a presumptively ex parte process, while preserving judicial discretion to require notice in an appropriate case.

The issuing justice acted within jurisdiction, gave defence counsel an opportunity to explain why standing should be granted, and committed no breach of s. 8.

In any event, the court held that exclusion under s. 24(2) would not be warranted because any breach would have been minimal and technical, the authorities acted in good faith, and the evidence was important and inevitable.

In a criminal voir dire within a murder prosecution, the court considered whether the accused's recorded police statement was voluntary under the confessions rule.

The defence argued that delay in access to counsel, overnight detention, discomfort from being cold, youth, and police suggestions that an innocent person should speak created oppression and undermined voluntariness.

Applying the contextual voluntariness analysis from the governing confession cases, the court held there was no atmosphere of oppression, no improper quid pro quo, and no doubt that the accused had an operating mind and understood both the right to counsel and the right to remain silent.

The statement was ruled voluntary and admissible.

In a first degree murder prosecution arising from a fatal stabbing, the court considered whether the audiotape of the deceased's 911 call should be played for the jury where the defence conceded the contents were admissible for their truth but sought to limit the evidence to a transcript.

The court held that the audio itself had significant additional probative value because it allowed the jury to assess the declarant's physical and emotional state, bearing on credibility and reliability on the central issue of identity.

Although the recording carried some risk of emotional prejudice, that risk was limited and could be addressed by a limiting instruction.

The audiotape was admitted and could be played to the jury.

The accused brought an application for an order permitting him to sit at counsel table during a first degree murder trial.

The court held that seating and location of an accused is within the trial judge's discretion and must balance courtroom safety and security with dignity, the presumption of innocence, communication with counsel, solicitor-client privilege, and the ability to follow the proceedings.

Given the accused's significant youth record for violent offences and his institutional assault record while in custody, the court found a sufficient security risk to require that he remain in the prisoner’s dock.

The court further held that this placement would not impair trial fairness or the accused's participation.

The accused was charged with firearm and drug offences after police stopped him on his bicycle and searched a bag he had handed to a bystander.

The police claimed they searched the bag and the accused because they smelled fresh marijuana.

The court found the officers' evidence regarding the smell of marijuana to be fabricated and untruthful.

Concluding that the warrantless searches violated the accused's s. 8 Charter rights, the court excluded the seized handgun and marijuana under s. 24(2) due to the egregious and bad faith conduct of the police.

The three accused were charged with 32 armed robberies of gas stations and convenience stores.

Following their arrest after a foot pursuit, they were held for several hours before giving videotaped confessions.

The accused sought a stay of proceedings alleging police brutality, and challenged the admissibility of their statements and physical evidence seized.

The court dismissed the stay application, finding no evidence of police brutality, and upheld the lawfulness of the arrests and search warrants.

However, the court ruled the statements inadmissible because the Crown failed to prove voluntariness beyond a reasonable doubt, largely due to the police's failure to video-record the critical 'pre-interviews' where the accused allegedly waived their right to counsel and agreed to confess.

The respondents pleaded guilty to dangerous driving causing death after driving at excessive speeds and colliding with a taxi, killing the driver.

At a pre-trial conference, the Crown undertook not to appeal if conditional sentences were imposed.

The trial judge imposed conditional sentences of two years less a day with house arrest for the first year, plus a four-year driving prohibition.

The Attorney General appealed the sentences.

The Court of Appeal held that the Crown's undertaking did not bar the Attorney General's statutory right to appeal and did not constitute an abuse of process.

While the trial judge did not err in principle in imposing conditional sentences, the sentences were demonstrably unfit as they lacked sufficient punitive conditions to address denunciation and general deterrence.

The Court allowed the appeal, extending the house arrest to the full term of the sentences and increasing the driving prohibitions to seven years.

The appellant appealed from a conviction entered by the Ontario Court of Justice.

The Court of Appeal dismissed the conviction appeal, finding that despite alleged errors in the trial judge's reasons, the core of the decision was clear and there was no basis to interfere.

The sentence appeal was abandoned.

The appellant appealed the sentence imposed by the trial judge, arguing that the trial judge misused information provided in the pre-sentence report.

The Court of Appeal dismissed the appeal, finding no error in principle and holding that the absence of remorse was a relevant consideration in determining whether a conditional sentence was appropriate.

The sentence imposed was found to be fit.