Ehsan Ghebrai

On a pre-trial evidentiary motion in a joint heroin importation prosecution, one accused sought to exclude evidence that a small quantity of heroin was found in his home during a search warrant execution.

The co-accused advanced a cut-throat defence and argued the evidence was relevant to show that the applicant, not the co-accused, planned and knowingly imported the heroin.

The court held that, although the Crown could not lead the evidence as propensity evidence, different considerations applied where a co-accused tendered it in support of full answer and defence.

With an appropriate limiting instruction, the prejudicial effect did not substantially outweigh the probative value, and the evidence was admissible.

The accused applied to exclude evidence of a marijuana grow operation seized during the execution of a search warrant, arguing there was no reasonable basis for its issuance.

The court reviewed the Information to Obtain (ITO) and found that the affiant police officer had misled the issuing justice, lied about the accused's criminal record, and provided unreliable information from a confidential informant.

Applying the Garofoli step-six review, the court concluded the un-excised ITO could not support the warrant and that the officer's conduct was subversive to the prior authorization process.

The search warrant was quashed.

The accused pleaded guilty to human trafficking under section 279.01 of the Criminal Code.

The offence involved the confinement and sexual exploitation of a 15-year-old girl in foster care, whom the accused compelled to work as a prostitute for financial gain.

The accused, aged 23 with a prior criminal record including robbery convictions, had been in custody since November 21, 2012.

Both Crown and defence counsel jointly submitted that a 5-year sentence was appropriate.

The court imposed a 5-year sentence with credit for time served at a 1.5:1 ratio, resulting in approximately 33.9 months remaining to be served.

Additional orders included a 20-year SOIRA order, a lifetime section 109 prohibition order, and a DNA order.

At a preliminary inquiry, the Crown sought to establish sufficient evidence to commit four accused persons to trial for armed home invasion robbery, kidnapping with intent to hold for ransom, and related offences.

The evidence included direct testimony from the complainant, extensive video surveillance from the complainant's home security system, CTV news helicopter footage of the police takedown, and mall security video.

The court found sufficient evidence upon which a properly instructed trier of fact could reasonably find guilt on charges of armed robbery, kidnapping with use of firearms, masked commission of indictable offences, and escape from lawful custody.

All four accused were committed to stand trial in Superior Court before a judge and jury.

At a preliminary inquiry, the court determined whether two accused had committed offences related to possession and storage of a firearm and ammunition found during a police response to a break and enter in progress.

The accused Robinson was the former tenant of the apartment who had been evicted that morning.

The accused Williams was not present at the scene.

The court found sufficient evidence to commit Robinson to trial on charges of unlawfully being in a dwelling and possession of the firearm and ammunition, but discharged Williams on all counts due to insufficient evidence of knowledge or control.

The accused brought an evidentiary motion in a criminal trial concerning whether statements allegedly acknowledging a nickname could be admitted as evidence of adoption.

A police officer testified that on several occasions the accused acknowledged being known by the nickname “Governor,” though the evidence was imprecise and unsupported by contemporaneous notes.

The court held that the alleged acknowledgements provided an evidential basis upon which a jury could determine whether the accused adopted the nickname, and the lack of specificity affected weight rather than admissibility.

The court also ruled that if the Crown elicited evidence of the alleged adoption, the defence would be permitted to cross‑examine on a prior denial of the nickname to avoid presenting an incomplete picture to the jury.

The accused brought a motion to exclude evidence of an out-of-court identification arising from a 1996 police photo lineup.

The original photo array had been lost and could not be reconstructed, and the identification procedure had been conducted in a manner inconsistent with later Sophonow inquiry recommendations, including the absence of audio or video recording, use of an investigating officer who knew the suspect, and simultaneous presentation of photographs.

The court held that the procedure was fundamentally flawed and that the loss of the photo array created significant prejudice to the defence’s ability to challenge the identification.

Given the inability to assess the fairness of the lineup and the resulting prejudice, the court excluded the evidence of the photo identification.

The ruling noted that the issue could be revisited depending on developments at trial.

The accused brought an application to exclude statements made to police in Georgia following his arrest on a Canadian warrant for attempted murder and firearms offences.

The defence argued the statements were involuntary and contrary to the Charter and American law.

The court held the Crown failed to prove the voluntariness of statements made during a police station interview due to gaps in the evidentiary record concerning the accused’s treatment between arrest and questioning.

However, statements made at the time of arrest providing a false name and date of birth were admissible because they arose from routine identity questions following a lawful arrest and did not constitute investigative interrogation.

The court further confirmed that the Canadian Charter generally does not apply to foreign officials acting outside Canada, though foreign evidence may still be excluded if its admission would render the trial unfair.

In a criminal voir dire, the Crown sought a ruling that a videotaped statement made by the accused to police following his arrest for drug trafficking offences involving the importation of large quantities of opium was voluntary and therefore admissible.

The accused argued the statement was involuntary because he had not been cautioned that his words could be used against him.

Applying the principles from R. v. Oickle, the court considered whether the statement resulted from threats, promises, oppression, or whether the accused lacked an operating mind.

The court found the accused had consulted counsel shortly before the interview, understood he was speaking to a police officer during a criminal investigation, and was aware of the potential consequences of speaking.

The statement was largely exculpatory, made without inducement or coercion, and the accused demonstrated an operating mind.

The court concluded the Crown proved voluntariness beyond a reasonable doubt and admitted the statement at trial.

The accused brought an application seeking leave to cross-examine a police affiant on an affidavit supporting a wiretap authorization under sections 185 and 186 of the Criminal Code.

They argued the affidavit lacked full and frank disclosure, relied improperly on confidential informants without adequate credibility assessments, contained unsupported assertions, and failed to demonstrate investigative necessity.

The court reviewed the Garofoli framework and held that cross‑examination is only permitted where there is a reasonable likelihood that questioning would undermine a statutory precondition to the authorization.

The court found the affidavit sufficiently corroborated by independent police investigation and shipments of seized opium, and held informer privilege limited further disclosure about confidential sources.

Concluding that the applicants failed to establish any reasonable likelihood that cross‑examination would discredit the basis for the authorization, the court dismissed the application.

The accused applied for a stay of proceedings during a jury trial for sexual assault with a weapon and uttering threats, arguing that the police lost key seized items including the complainant’s nightgown and the accused’s underwear which could have contained potentially exculpatory forensic evidence.

The defence alleged the loss breached the accused’s s. 7 Charter rights by preventing full answer and defence.

The court applied the framework from R. v. La and R. v. Bero concerning the Crown’s duty to preserve relevant evidence and whether its loss resulted from unacceptable negligence.

The judge found the evidence was misplaced after many years but not due to unacceptable police negligence, noting the items were properly logged and secured and that much of the delay was attributable to the accused fleeing the jurisdiction for extended periods.

The court further held that the defence failed to demonstrate actual prejudice or that the missing evidence would materially assist the defence.

The application for a stay of proceedings was dismissed.

The Crown sought a ruling that a videotaped police statement made by the accused was voluntary and admissible for use in cross-examination if the accused testified.

The defence argued that the Crown failed to prove voluntariness beyond a reasonable doubt because it did not call all police officers who might have had contact with the accused during the approximately ten-hour period between arrest and the interview.

The court held that the Crown is not required to call every officer who might have had incidental contact with an accused and that speculation about possible improper contact is insufficient to raise a reasonable doubt.

The evidence showed the accused understood his rights, consulted counsel, and appeared alert and cooperative during the interview.

The court found no evidence of threats, inducements, or circumstances that would overbear the accused’s will.

In a pre-trial evidentiary motion during a criminal jury proceeding, the Crown sought to admit recordings of two 911 calls made shortly after an alleged sexual assault.

The defence argued the calls were not contemporaneous with the alleged offence and therefore could not qualify as spontaneous utterances, and further argued the evidence was unnecessary because the complainant could testify directly.

The court held that the complainant remained under the stress of the startling event when the calls were made, as she had fled the residence, was being pursued, and was crying and distraught.

The statements were therefore admissible under the spontaneous utterance exception to the hearsay rule.

The court also held that the calls would be admissible under the principled approach due to reliability and necessity.

In a pre‑trial evidentiary application during a jury trial for sexual assault with a weapon and uttering a death threat, the accused sought to exclude alleged post‑offence conduct.

The Crown proposed to introduce evidence that the accused failed to attend a preliminary hearing and was later re‑arrested when returning to Canada.

The court held that the proposed evidence was not relevant to the issues at trial because there was no evidence establishing when or why the accused left the country or failed to attend court.

The judge further concluded that the evidence carried a high risk of prejudicial reasoning by inviting speculation that the accused fled due to guilt.

Even if minimally relevant, the prejudicial effect substantially outweighed any probative value and the evidence was excluded.