Eric W.G. Taylor

This ruling addresses whether the applicants, Melissa Merritt and Christopher Fattore, had a reasonable expectation of privacy (REP) in data stored on a 'loaner phone' provided by police after their original phone was seized.

The court applied the totality of circumstances test, considering the subject matter (data), the applicants' interest in it, their subjective expectation, and its objective reasonableness.

The court found that the applicants did have a reasonable expectation of privacy in the personal data on the loaner phone, primarily because police had previously informed Ms. Merritt that a warrant would be required to access data on their seized family phone, fostering a reasonable belief that the same protection would apply to the replacement device.

The applicants, charged with multiple murders, brought an application to exclude electronic intercepts and tracking warrant evidence, alleging violations of section 8 of the Charter.

The application challenged the necessity of judicial authorization for police email exchanges in an undercover operation, the police's actions in repacking belongings containing listening devices, and the validity of a tracking warrant based on alleged material errors and omissions in the information to obtain.

The court dismissed the application, finding no reasonable expectation of privacy in the email communications, that police actions regarding the trailer were within the scope of implied invitation, and that the tracking warrant was valid.

The applicants, facing multiple murder charges, brought a last-minute application to seal emails seized under a general warrant and prohibit Crown and police access, alleging facial invalidity and abuse of process.

This application followed an earlier agreement to return non-privileged emails to the Crown.

The court, acting as the trial judge on the eve of trial, deferred the full review of the warrant's validity to pretrial motions, emphasizing trial management and procedural fairness.

The court also found the warrant not facially invalid on a preliminary review and noted the defence's failure to adhere to the prior agreement regarding email return.

The court ruled on the admissibility of a prior inconsistent statement under s. 11 of the Canada Evidence Act during a first-degree murder trial.

The Crown sought to introduce evidence from a witness, Mr. Watts, that another witness, Mr. Moy-Lingomba, had previously identified the defendant as the shooter.

The court initially precluded this evidence during the Crown's examination-in-chief of Mr. Watts, finding that the precondition of s. 11, requiring the alleged statement to be squarely put to Mr. Moy-Lingomba during cross-examination, had not been met.

The ruling emphasized the rationale of s. 11 concerning trial economy, fairness to the adversary, and fairness to the witness, and also noted the limited probative value and substantial prejudicial value of the evidence in question.

The court ruled on whether to provide a Vetrovec caution to the jury for three witnesses (Mr. Borden, Mr. Moy-Lingomba, and Mr. Watts) in a criminal trial.

The Defence objected to cautions for Mr. Borden and Mr. Moy-Lingomba, arguing that such cautions are for the Defence's benefit and should be omitted if the Defence requests.

The Crown conceded that a caution was not needed for Mr. Watts.

The court determined that a trial judge's duty to ensure trial fairness and assist the jury supersedes a tactical decision by the Defence when a Vetrovec caution is necessary or mandatory.

Given Mr. Borden's overwhelming credibility issues and the centrality of his evidence to the Crown's case, a Vetrovec caution was deemed mandatory.

For Mr. Moy-Lingomba, who also had overwhelming credibility issues and whose evidence was critical to both the Crown (motive) and Defence (third-party suspect), a "mixed Vetrovec" caution was deemed mandatory to assist the jury in assessing inculpatory and exculpatory statements.

The Crown applied under s. 9(2) of the Canada Evidence Act for leave to cross-examine a reluctant witness, Mr. Moy-Lingomba, on prior inconsistent statements made to an undercover informant, Mr. Darren Watts, during a first-degree murder trial.

The witness had recanted his prior statements during examination-in-chief, claiming he was "high" and couldn't recall.

The defence opposed, arguing no material inconsistency and challenging the circumstances of the statements.

The court found material inconsistencies and granted leave, determining that the interests of justice favoured allowing cross-examination, as the statements were relevant to the identity of the shooter, the credibility of another witness, and the motive for the shooting, and their reliability was not fundamentally undermined by the witness's claims of impairment or the informant's conduct.

The defendant, Sheldon Ranglin, charged with first-degree murder, brought a proposed application to exclude evidence related to a three-way phone call.

The defence challenged the validity of a production order for Maplehurst Correctional Facility phone records, opposed the introduction of July 3, 2015 phone records due to alleged inconsistencies with witness testimony, and sought an adjournment of cross-examination due to outstanding disclosure.

The court summarily dismissed the application, finding that the defendant had no reasonable expectation of privacy in the Maplehurst pay phone records and thus no standing to challenge their admission.

The other issues were deemed matters for cross-examination or future application.

This is Mr. Kennedy's seventh bail application, seeking release on a bail review.

He is facing multiple serious charges including kidnapping, assault causing bodily harm, unlawful confinement, extortion, and uttering death threats, along with a probation breach.

The applicant proposed release to a surety with conditions, including an ankle bracelet.

The court dismissed the application, finding a substantial likelihood of him committing another offence if released, based on his lengthy and violent criminal record, including an assault conviction while in custody on the current charges, and the serious nature of the pending allegations.

The accused, Aaron Kennedy, brought a further bail review application after previous applications were dismissed.

The application was based on alleged material changes in circumstances, including trial delay, new evidence undermining the complainant's credibility (extortion attempts, phone records inconsistent with alleged confinement), and a new proposed release plan incorporating regular police reporting and ankle monitoring.

The court found a material change in circumstances but ultimately dismissed the application, determining that detention remained necessary on the secondary ground due to Kennedy's extensive criminal record, history of breaching court orders, and committing an assault while in custody.

The proposed release plan was deemed insufficient to mitigate the substantial likelihood of re-offending.

Police obtained broad “tower dump” production orders requiring telecommunications providers to disclose subscriber information for thousands of mobile devices connected to multiple cell towers during specified time periods.

The providers brought Charter applications challenging the orders and seeking to quash them or obtain exemptions.

The police then applied to revoke the production orders under the Criminal Code to replace them with narrower orders.

The court held that revocation applications may proceed ex parte and revoked the original orders, but exercised its discretion to hear the telecommunications companies’ Charter applications even if they were rendered moot because of the broader public importance of privacy concerns relating to tower dump production orders.