Dirk Derstine

Judge-alone retrial on a charge of first degree murder arising from a 2006 disappearance where the victim's body was never located.

The Crown relied principally on accomplice evidence, a prior KGB statement from the accused's former common-law partner, and corroborative circumstantial evidence including cellphone records and post-offence conduct.

The court treated the accomplice as a classic Vetrovec witness, rejected large portions of his evidence absent confirmation, but found essential aspects of the killing and body disposal corroborated by independent evidence.

The court held the Crown proved intentional killing beyond a reasonable doubt, but failed to prove planning and deliberation or the distinct predicate confinement necessary for constructive first degree murder.

The accused was acquitted of first degree murder and convicted of second degree murder.

During a retrial for first-degree murder, the accused applied to reopen the evidentiary portion of the trial to cross-examine the Crown's principal witness, a Vetrovec witness, about new second-degree murder charges laid against him after he testified.

The court applied the Hayward test and dismissed the application, finding the proposed fresh evidence was not sufficiently relevant to material issues, would cause undue delay, and was unnecessary given the witness's character had already been thoroughly impeached at trial.

The applicant, awaiting trial for first-degree murder and firearms offences, sought bail based on changed circumstances since his initial detention order.

The court found that trial delays due to the Covid-19 pandemic, a recent outbreak at the detention centre, a strengthened release plan, and a pre-trial ruling strengthening the Crown's case constituted material changes warranting a fresh analysis.

However, after weighing the secondary and tertiary grounds under s. 515(10) of the Criminal Code, including the applicant's repeated possession of loaded handguns and the strength of the Crown's case, the court concluded that detention remained necessary and dismissed the application.

The applicant, on trial for first-degree murder, sought disclosure of police records relating to recent murder charges against a key Crown witness.

The records were held by a different police force and Crown office than those prosecuting the applicant.

The court determined that the third-party records regime under O'Connor applied, rather than the first-party Stinchcombe regime, because the prosecuting Crown did not have possession of the records and they were not 'obviously relevant' to the applicant's case.

Applying the O'Connor test, the court found the records were likely relevant to the witness's credibility and ordered their production to the defence.

The accused, awaiting trial for first degree murder, brought a pre-trial motion to challenge prospective jurors for cause based on pre-trial publicity and racial bias.

The Crown consented to the challenge but disputed the form of the questions regarding race.

The accused called expert evidence to propose new, multi-part questions to uncover racial bias.

The court rejected three purely attitudinal questions but permitted a modified version of the fourth question that incorporated the behavioural component of partiality required by law.

The Crown brought a pre-trial motion to admit two bodies of evidence in a first-degree murder trial.

The evidence related to the accused's alleged prior possession of two handguns used in the homicide.

The first body of evidence consisted of cell phone photographs showing the accused with a revolver similar to one of the murder weapons.

The second body of evidence involved the accused's presence at a prior shooting where the second murder weapon was discharged.

The court ruled both bodies of evidence admissible, finding that their probative value in establishing the accused's identity and access to the murder weapons outweighed their prejudicial effect as prior discreditable conduct, subject to potential editing and admissions to limit prejudice.

The appellant appealed his convictions for aggravated assault and carrying a weapon, arguing the trial judge erred in admitting and relying on recognition evidence from two police officers who identified him from video surveillance.

The Court of Appeal found that while the trial judge erred in admitting one officer's evidence due to insufficient prior acquaintance, the error was harmless and curable under the proviso because the trial judge independently concluded the appellant was the perpetrator based on high-quality video and photographic evidence.

The court also held the verdict was not unreasonable, and the appeal was dismissed.

The accused, Jeremy Hall, charged with first-degree murder, brought an application (KGB application) to admit two police statements from a deceased witness, Tracey Friesz, for their substantive truth.

The defence argued for both procedural and substantive reliability of the statements.

The Crown conceded necessity but disputed reliability, highlighting Friesz's motive to protect her then-boyfriend, her history of dishonesty, and the lack of corroborative evidence.

The court denied the application, finding that procedural reliability was not established due to the absence of an oath and ineffective warnings, and substantive reliability was not met as the statements were not inherently trustworthy, given the declarant's motive to lie and lack of corroboration.

The court concluded that the probative value of the statements was substantially outweighed by their prejudicial effect.

The self-represented appellant was convicted of fentanyl trafficking, conspiracy, and uttering forged documents.

He appealed on the basis that he was denied access to the Crown's digital disclosure while incarcerated during the trial.

The Crown conceded the trial was unfair and the appeal should be allowed, but argued for a new trial.

The appellant sought acquittals, arguing he had already served part of his sentence and the verdict was unreasonable.

The Court of Appeal allowed the appeal and ordered a new trial, finding there was sufficient evidence upon which a properly instructed jury could convict.

The Crown applied to admit a recanted police statement from a material witness (Carol Ann Eaton) for substantive use in a first-degree murder trial against Jeremy Hall, under the "KGB application" framework.

The defence opposed, arguing lack of procedural and substantive reliability due to alleged coercion and the witness's recantation and claimed memory loss.

The court granted the Crown's application, finding that procedural reliability was established through the sworn, video-recorded statement and the opportunity for meaningful cross-examination of the witness at trial, despite her claims of coercion and memory lapse.

The court rejected the defence's arguments regarding police misconduct and the witness's credibility.

The three appellants were convicted of second-degree murder following a brutal group attack on the victim, who was beaten and stabbed.

They appealed their convictions on several grounds, including the trial judge's instructions on co-principal liability and the mens rea for murder, evidentiary rulings regarding prior inconsistent statements, and the refusal to give an Oliver instruction for a co-accused.

One appellant also appealed her 12-year parole ineligibility period.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's jury instructions or evidentiary rulings, and upholding the sentence as fit.

The appellant appealed his conviction for first degree murder, challenging the constitutionality and retrospective application of legislative amendments that abolished peremptory challenges and substituted the presiding judge for lay triers in challenges for cause.

The Court of Appeal held that the amendments did not violate the appellant's rights under ss. 7, 11(d), or 11(f) of the Charter.

However, the Court found that while the change to the challenge for cause procedure was purely procedural and applied retrospectively, the abolition of peremptory challenges affected substantive rights and applied prospectively.

Because the appellant's right to a jury trial vested before the amendments came into force, the abolition of peremptory challenges should not have applied to his trial.

The appeal was allowed and a new trial ordered.

Sentencing following convictions for two counts of manslaughter and multiple related firearm and bodily harm offences arising from a mass shooting in a crowded downtown food court that killed two men and injured numerous bystanders.

The court treated the offences as highly aggravated public gun violence, emphasizing denunciation, deterrence, and protection of the public, while rejecting self-defence and finding only limited mitigation from the offender's race-and-culture evidence and mental disorder evidence.

The court accepted that prolonged administrative segregation and harsh pre-sentence detention conditions breached ss. 7 and 12 of the Charter and used that finding to decline what would otherwise have been a delayed parole ineligibility order.

Life sentences were imposed on the two manslaughter counts, with concurrent fixed terms on the remaining counts and pre-sentence credit applied to the determinate sentences.

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 accused brought an application challenging the constitutionality of Bill C-75 amendments to the Criminal Code, which eliminated peremptory challenges and replaced lay triers with the trial judge for challenges for cause.

The accused argued these changes violated his rights under sections 7, 11(d), and 11(f) of the Charter.

The Superior Court of Justice dismissed the application, finding that the amendments did not infringe the accused's right to an independent and impartial jury, nor did they violate principles of fundamental justice.

The court also held that the amendments were procedural in nature and applied retrospectively to the accused's trial.

The appellant was convicted of first degree murder in the death of a sex-trade worker.

The Crown's case was based on circumstantial evidence including DNA evidence, cell phone records, security footage, and evidence of post-offence conduct.

The trial judge sentenced the appellant to life imprisonment with 25 years of parole ineligibility.

On appeal, the appellant challenged four aspects of the trial judge's charge to the jury: the characterization of the cause of death as strangulation, instructions on non-fatal injuries, examples of circumstantial evidence, and instructions on post-offence conduct.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

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.

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.