Dirk Derstine

The Crown brought a motion seeking rulings on the admissibility of two statements made by the accused to police, one given before arrest and another during a custodial interrogation following arrest for murder.

The court considered whether the statements were voluntary under the common law confessions rule and the contextual framework established in R. v. Oickle.

The pre‑arrest statement was found voluntary because the accused was not yet a suspect and the interview occurred in a non‑oppressive setting without threats, inducements, or trickery.

The post‑arrest interview, conducted using the Reid technique and involving persistent questioning, was also found voluntary because the accused maintained control of the conversation, repeatedly asserted his right to silence, and made no incriminating admissions.

The court ruled the first statement admissible and held the second voluntary but deferred final probative‑prejudice determinations regarding its use at trial.

In a murder prosecution, the Crown brought a motion to admit graphic post‑mortem photographs of the deceased child to be used during the testimony of a forensic pathologist.

The court applied the common law balancing test governing the admissibility of graphic evidence, weighing probative value against prejudicial effect.

One photograph depicting the body in its original position was found to have significant probative value in illustrating the condition of the remains, corroborating witness testimony, and assisting the jury in assessing the forensic expert’s conclusions.

A second photograph was largely redundant and risked undue prejudice due to the exposure of the genital area, particularly given allegations of sexual assault.

The court admitted the first photograph but excluded the second, subject to reconsideration depending on the course of cross‑examination.

Following conviction for possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code, the sentencing court considered constitutional challenges to the mandatory minimum in s. 95(2)(a)(i).

The court held that the three-year minimum was grossly disproportionate on the facts and therefore violated s. 12, and further held the hybrid structure created arbitrariness contrary to s. 7 because of the one-year summary maximum and three-year indictable floor.

The infringements were not saved under s. 1, and the proper remedy was a declaration of invalidity under s. 52 rather than a constitutional exemption or mandamus.

Applying ordinary sentencing principles once the minimum was removed, the court imposed a one-year sentence with credits, resulting in five months to be served conditionally in the community.

The court determined the admissibility of electronic evidence in a criminal prosecution involving serious violent offences.

Following an earlier ruling excluding evidence obtained from searches of the accused’s laptop and Blackberry under s. 24(2) of the Charter, most electronic evidence became inadmissible.

The remaining issue concerned the admissibility of a Facebook profile message obtained through a Mutual Legal Assistance Treaty request to Facebook’s headquarters in the United States.

The accused argued the statement lacked contextual meaning and relied on jurisprudence excluding ambiguous overheard statements.

The court distinguished those authorities, finding the social media post represented a complete statement intentionally communicated by the accused on his profile and was therefore highly probative with no unfair prejudice.

The applicant, charged with the abduction and murder of an eight-year-old child, brought a pre-trial Charter application alleging unreasonable search and seizure regarding several search warrants.

The court upheld the validity of the warrants and the search of the applicant's vehicle and residence, allowing the Crown to admit physical evidence.

However, the court found that the warrantless forensic search of the applicant's laptop and cell phone, which had been seized from the vehicle, violated s. 8 of the Charter.

Applying the Grant framework, the court excluded the digital evidence under s. 24(2), noting the high privacy interest in personal computers and the marginal probative value of the evidence sought to be admitted.

The Crown appealed the acquittals of the respondents, arguing the trial judge erred in finding a breach of section 8 of the Charter and excluding evidence under section 24(2).

The trial judge had excised misleading information from the Information to Obtain (ITO) and concluded the remaining facts could not support the search warrant.

The Court of Appeal allowed the appeal, finding that even after removing the misstatements, there remained sufficient reliable evidence connecting the respondents and the searched premises to the robbery to justify issuing the warrant.

A new trial was ordered.

The appellant appealed an order allowing a broadcaster to broadcast a video with the identities of the individuals obscured.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's application of the Dagenais/Mentuck test to balance the appellant's privacy concerns against freedom of the press.

The moving party brought a motion to quash an appeal by the appellant regarding an order granting the media access to a video exhibit from the appellant's concluded bail hearing.

The moving party argued the matter was criminal in nature, meaning jurisdiction lay with the Supreme Court of Canada.

The Court of Appeal dismissed the motion, holding that because the criminal proceedings were fully concluded and the order did not affect any ongoing criminal matter or the appellant's fair trial rights, the proceeding was civil in nature and properly appealed to the Court of Appeal under the Courts of Justice Act.

During a murder investigation, police obtained a warrant to search a rooming house and found a sawed-off shotgun in the appellant's rented room.

The appellant was charged with weapons offences and argued the search violated his section 8 Charter rights.

The trial judge excluded the evidence, but the Court of Appeal reversed this decision.

The Supreme Court of Canada dismissed the appeal, finding that there was sufficient credible and reliable evidence for the issuing justice to authorize the warrant for the appellant's room.

The appellant appealed his convictions for historical sexual assault and his sentence as a dangerous offender.

He argued the trial judge erred in admitting similar fact and reply evidence, and that the sentencing judge should have imposed a long-term offender order instead of a dangerous offender designation, given the potential use of anti-androgen medication.

The Court of Appeal dismissed the conviction appeal, finding no error in the evidentiary rulings.

The sentence appeal was also dismissed, as the sentencing judge correctly concluded there was no reasonable possibility of controlling the appellant's risk in the community, given his life-long condition and the uncertainty of his long-term commitment to taking sex drive reducing medication.

The appellant appealed his conviction, arguing that the trial judge's instructions on eyewitness identification evidence and the Vetrovec warning regarding the main Crown witness were deficient.

The Court of Appeal dismissed the appeal, finding that the eyewitness identification evidence was not central to the Crown's case and its frailties were drawn to the jury's attention by defence counsel.

The Court also held that the Vetrovec instructions, read as a whole, adequately conveyed the danger of relying on the main witness's evidence without independent confirmatory evidence.

The sentence appeal was dismissed as abandoned.

The appellants were convicted of possession of firearms found in a vehicle but acquitted of possessing over-capacity magazines.

They appealed their convictions on multiple grounds, including inconsistent verdicts, improper jury instructions, and Charter violations.

The Court of Appeal dismissed the conviction appeals, finding the verdicts reconcilable and the jury instructions proper.

The court also dismissed one appellant's sentence appeal, upholding his nine-year sentence due to his persistent criminality and prior firearms convictions.

The appellant was charged with various offences arising from three alleged incidents involving his ex-spouse.

He was acquitted on counts relating to the first and third dates and convicted on two counts relating to the second date.

On appeal, he argued the convictions were inconsistent with the acquittals because the central issue was the complainant's credibility.

The Court of Appeal dismissed the appeal, finding the evidence and acts alleged were different for each date, and the jury was entitled to convict on some counts while acquitting on others.

The Crown appealed the respondent's acquittal on weapons offences after the trial judge excluded a sawed-off shotgun and ammunition found in his rooming house basement apartment.

The evidence was discovered during the execution of a search warrant related to a murder investigation involving another tenant.

The trial judge found the Information to Obtain (ITO) the search warrant was insufficient and intentionally confusing, violating the respondent's s. 8 Charter rights, and excluded the evidence under s. 24(2).

The Court of Appeal allowed the appeal, holding that the trial judge misapprehended and failed to consider relevant evidence.

The majority concluded that the cumulative facts in the ITO provided sufficient reasonable grounds for the authorizing justice to issue the warrant.

The acquittals were set aside and a new trial was ordered.

The appellant, a dual status offender under the authority of the Ontario Review Board, was convicted of manslaughter for killing a fellow inmate.

The Crown applied to have him declared a dangerous offender.

The sentencing judge found the statutory criteria met and imposed an indeterminate sentence.

On appeal, the appellant argued procedural flaws regarding notice and the Attorney General's consent, and that the judge erred in not exercising residual discretion given the Review Board's concurrent jurisdiction.

The Court of Appeal dismissed the appeal, finding the procedural requirements were met and the appellant's high risk of violent recidivism justified the dangerous offender designation.

The Crown appealed an order awarding costs against it for alleged misconduct related to the disclosure of a Youth Court Record.

The trial judge had made a declaration regarding the record, but the Crown, believing it was statutorily precluded from disclosing it, sought an order from a Youth Court Judge instead.

The trial judge subsequently refused an adjournment and awarded costs against the Crown.

The Court of Appeal allowed the appeal and quashed the costs order, finding that while the Crown may have exercised poor judgment, its actions did not amount to misconduct warranting costs, and the trial judge ought to have granted the requested adjournment.

The Crown appealed a directed verdict of acquittal entered by the trial judge in a drug trafficking case.

The trial judge had ruled that the testimony of the alleged purchaser was essential to support a conviction.

The Court of Appeal allowed the appeal, finding ample basis in the police officer's testimony to infer a drug transaction occurred, and held that the trial judge erred in law.

The acquittal was quashed and a new trial ordered.

The Crown appealed the accused's acquittal on charges of robbery, assault with a weapon, and uttering death threats.

The Crown argued the trial judge erred by excluding certain medical evidence due to alleged non-disclosure, refusing to allow the Crown to admit the accused's statement to police, and failing to correct improper comments made by defence counsel during the jury address.

The Court of Appeal found that while the trial judge erred in excluding the medical evidence and defence counsel made improper comments regarding wrongful convictions and the Crown's integrity, these errors did not render the trial unfair or necessarily affect the verdict.

The appeal was dismissed.

The appellant was convicted of criminal negligence causing death and bodily harm, and impaired driving causing death and bodily harm, following a motor vehicle collision.

He appealed his convictions, arguing the trial judge misapprehended evidence, improperly inferred guilt from his post-offence departure from Canada, and that his trial counsel was ineffective.

The Court of Appeal found the trial judge erred in using the departure evidence to infer guilt, but applied the curative proviso given the overwhelming evidence of erratic driving and impairment.

The ineffective assistance of counsel claim was dismissed as the appellant failed to demonstrate prejudice.

The sentence appeal was allowed in part, reducing the sentence by one year to account for two-for-one pre-trial custody credit, which the trial judge had improperly denied based on the erroneous flight finding.

The appellants appealed a decision quashing their committal to stand trial for manslaughter and instead committing them to stand trial for second degree murder.

The Court of Appeal dismissed the appeal, agreeing with the reviewing judge that the preliminary inquiry judge committed a jurisdictional error by weighing competing inferences from the evidence in favour of the defence.

The reviewing judge correctly assessed the sufficiency of the evidence to determine the appropriate remedy.