Edward F. Hung

A young offender was convicted of manslaughter by a jury for his involvement in the fatal group beating of a 20-year-old victim.

The young offender was 15 years old at the time of the offence.

The Crown sought the maximum youth sentence of three years, while the defence sought time served plus probation.

The court applied the Ferguson principles to determine the facts for sentencing, finding that the young offender assisted in getting the victim into a car, prevented his escape at the park, and helped abandon him at the ringleader's home, where he died of internal bleeding.

The court rejected the defence of duress, finding the young offender had safe avenues of escape.

Emphasizing accountability and rehabilitation, the court sentenced the young offender to 2.5 years, with 18 months remaining to be served (10 months in closed custody and 8 months under community supervision).

The young person, charged with second degree murder, brought pre-trial applications seeking a stay of proceedings and the exclusion of certain evidence.

The moving party argued his right to silence was violated when he was compelled to testify at the preliminary inquiry of his adult co-accused.

The court dismissed the stay application, finding no breach of the Crown's undertaking or the right to silence.

The court ruled photographs of the moving party's hands admissible, finding their probative value outweighed any prejudicial effect.

However, the court excluded late-disclosed DNA evidence regarding blood on the moving party's sweatshirt, finding its admission would prejudice the defence.

A subsequent request by the Crown to admit the DNA evidence in reply was denied, with the court instead providing a strong caution to the jury.

A young person charged with second degree murder brought a pre-trial application seeking a ruling that the defence of duress was available at law.

The Crown alleged the accused was a party to murder as an aider under s. 21(1)(b) of the Criminal Code and argued that duress was unavailable because s. 17 excludes murder.

The court held that s. 17 applies only to principals who actually commit the offence and does not govern parties who aid or abet.

Relying on Supreme Court of Canada authorities including Paquette and Hibbert, the court concluded that the common law defence of duress remains available to a person charged as a party to murder.

The defence could therefore be raised at trial if an evidentiary foundation establishing an air of reality is shown.

In an application concerning a dispute over the beneficial ownership of a condominium allegedly funded by a loan, the applicant sought leave under Rule 39.02(2) of the Rules of Civil Procedure to file a supplementary affidavit after cross-examinations had been conducted.

The proposed affidavit asserted that payments previously identified by the respondent as repayment of the condominium loan were actually repayment of a different loan.

The court applied the governing factors for leave to file additional affidavit evidence after cross-examination, including relevance, responsiveness to cross-examination, prejudice, and the explanation for failing to introduce the evidence earlier.

Although the respondent made strong submissions opposing the request, the court accepted counsel’s explanation that the omission was due to oversight and found any prejudice could be compensated through costs and procedural directions.

Leave was granted on strict terms including a timetable for responding evidence and costs payable to the respondent.