David Smith

The accused, charged with murder as a co-principal in the beating death of a fellow inmate, challenged the constitutional validity of s. 17 of the Criminal Code insofar as it excludes murder from the statutory defence of duress.

He submitted that the court should read down the section to strike the exclusion.

The court noted that common law duress does not apply to a principal charged with murder and that the Court of Appeal in Aravena had indicated, in obiter, that the murder exception in s. 17 must be found unconstitutional.

Nevertheless, the court concluded that Parliament's deliberate choice to maintain the exclusion, most recently reaffirmed in 1983, was justified as a reasonable limit under s. 1 of the Charter, drawing a bright line that a threat of potential harm cannot outweigh the certain taking of a life.

The motion was dismissed.

The applicant, Amanda Morden, sought a declaration that the respondent, Ingrid Niwranski, held certain investment accounts in joint ownership with the deceased, Giuseppe Lagana, subject to a resulting trust in favour of his estate.

The court considered whether the presumption of resulting trust was rebutted by evidence of Lagana’s intention to gift the right of survivorship to Niwranski.

After reviewing affidavits, cross-examinations, and the testimony of a financial planner, the court found sufficient corroborative evidence that Lagana intended Niwranski to receive the accounts upon his death.

The presumption of resulting trust was rebutted, and judgment was granted in favour of the respondent.

The defendant, G.W., was charged with one count of sexual assault stemming from an incident in October 1995.

The trial proceeded by judge alone.

The complainant testified that the defendant pinned her against her vehicle and attempted to sexually assault her.

The defendant denied the allegations.

The court found inconsistencies in the complainant's testimony regarding the details of the assault and the physical feasibility given her costume.

While rejecting the defendant's account, the court was left with a reasonable doubt regarding the Crown's proof of sexual assault.

The defendant was found not guilty.

The defendant, Ahmed Noor, was sentenced after being found guilty of unlawful possession of a loaded handgun, unlawful possession of a firearm while prohibited, breaching a prohibition order, and failing to comply with bail.

He had been acquitted of intentionally discharging a firearm on grounds of self-defence.

The court considered aggravating factors, including his criminal record for violence and firearm use, the loaded semi-automatic handgun, and the deliberate and prolonged public possession while under house arrest.

Mitigating factors included his admission of the offences, remorse, physical injury sustained during the incident, systemic factors related to anti-Black racism, and harsh pre-sentence custody conditions.

The Crown sought a 9-year global sentence, while the defence sought 5 years.

The court imposed a global sentence of 7.5 years, comprising 6.5 years for the firearm offence and 12 months for the breaches, to be served consecutively.

The defendant, Ahmed Noor, admitted to discharging a firearm but claimed self-defence and lacked intent to endanger life.

The court found that while Noor intentionally discharged the firearm with intent to endanger life, the Crown failed to disprove his claim of self-defence beyond a reasonable doubt.

Consequently, Noor was found not guilty of intentional discharge of a firearm but guilty of related firearm and bail breaches based on admitted facts.

The two accused were charged with multiple firearm offences, including shooting a pedestrian in a nightclub parking lot following a brief physical altercation.

The Crown alleged the passenger shot the pedestrian, while the defence argued the pedestrian brought his own gun in a satchel, which discharged during the struggle.

The court found the driver's testimony credible and consistent with the physical evidence and video footage.

The court concluded there was a reasonable doubt as to who brought the gun and fired the shot, resulting in acquittals for both accused on all counts.

The applicant sought a review of his continued detention under s. 525 of the Criminal Code, arguing the original bail hearing was flawed and that delays due to the COVID-19 pandemic warranted release.

The court found no new evidence and upheld the Justice of the Peace's decision to detain on secondary grounds, citing the applicant's extensive criminal record, the violent nature of the alleged home invasion, and the unsuitability of the proposed sureties.

The application was dismissed, but a renewed application was permitted by October 30, 2020, to reassess the impact of pandemic-related delays.

The defendant was charged with assault, choking with intent, sexual assault, and unlawful confinement.

The central issue was identification, with the Crown relying on the complainant's identification and DNA evidence, while the defence presented an alternative explanation for the DNA findings through witness testimony.

The court found the complainant's identification evidence unreliable due to inconsistencies and uncertainty.

Although the DNA evidence was compelling, the defence witnesses' accounts, despite minor flaws, raised a reasonable doubt regarding the defendant's identity as the perpetrator of the alleged assault at the Liberty Village apartment.

The court also addressed, for completeness, the elements of sexual assault and unlawful confinement, finding the sexual assault elements met but not the unlawful confinement elements due to uncertainty regarding intent.

The defendant was found not guilty on all counts.

The defendant brought a motion for summary judgment to dismiss a claim by his late mother's estate.

The estate alleged the defendant failed to pay his mother a one-third share of crop income from a farm property as required by his late father's will.

The defendant argued that when he stopped farming, he and his mother agreed she would receive one-third of the rental income instead, which she accepted for 18 years.

The court found the estate's evidence relied on inadmissible hearsay from interested beneficiaries that lacked threshold reliability and corroboration under s. 13 of the Evidence Act.

The court concluded the mother had agreed to or acquiesced in the changed payment arrangement and granted summary judgment dismissing the action.

The offender was found guilty by a jury of possessing a loaded restricted firearm and related offences, having fled from police and discarded the weapon in a residential backyard.

At the time, he was bound by two weapons prohibition orders and a probation order.

The Crown sought 8 to 10 years, while the defence sought the mandatory minimum of 5 years, citing the offender's pending deportation.

The court imposed a global sentence of 7.5 years, finding the Crown's position unreasonably high but noting the serious aggravating factors.

The court granted enhanced pre-sentence custody credit at a ratio of 1.3:1 due to the loss of parole eligibility.

During a jury trial for possession of a loaded restricted firearm, the defence twice applied for a mistrial after the Crown referred in opening submissions to information received from a confidential informant indicating the accused would possess a firearm.

The defence argued the comments introduced highly prejudicial investigative hearsay that could not be tested through cross-examination.

The court accepted that some aspects of the Crown’s opening were improper but held the prejudice could be cured through limiting instructions and by restricting the evidence elicited from the investigating officer.

Applying the mistrial test from R. v. Khan, the court concluded the jury’s exposure to the information did not compromise the trial to the extent that only a new trial could remedy it.

Both mistrial applications were dismissed.

The offender was found guilty by a jury of possessing a loaded restricted firearm and related offences, and by a judge of breaching weapons prohibition and probation orders.

The offender fled from police and threw the loaded handgun into a residential backyard.

The court considered the offender's prior firearms conviction, his pending deportation to Jamaica, and the need for denunciation and deterrence.

The court imposed a global sentence of 7.5 years imprisonment, less enhanced pre-sentence credit at a ratio of 1.3:1, resulting in 74 months remaining to be served.

The applicant, a common‑law spouse of the deceased, brought a motion within a dependant’s support application under Part V of the Succession Law Reform Act seeking interim legal fees and expert disbursements payable from the estate.

The estate trustees opposed the request, arguing that the applicant had sufficient income following an interim support order and that a non‑dissipation clause limited the estate’s ability to fund litigation.

The court reviewed the equitable jurisdiction to award interim costs and the criteria from Okanagan Indian Band requiring financial need, a prima facie meritorious claim, and special circumstances.

The court found the applicant financially constrained, facing significant legal expenses, and advancing a meritorious claim for dependant’s relief following a lengthy common‑law relationship.

Interim costs of $50,000 on a partial indemnity basis and up to $10,000 for expert valuation disbursements were ordered payable from the estate, subject to accounting and possible adjustment by the trial judge.