Ehsan Ghebrai

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 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.

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.

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.

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.