F. Javed

During a jury trial for first degree murder, the trial judge considered whether the Crown could advance two alternative theories of liability: that the accused was the shooter or that he orchestrated the killing by recruiting another individual to carry it out.

The issue arose after evidence concerning a white jacket containing gunshot residue and security footage suggesting another person had previously worn the jacket.

The defence argued the alternative theory lacked an evidentiary foundation and risked prejudicing the accused by providing the jury with an unsupported route to conviction.

Applying the “air of reality” test and relying on authorities concerning alternative routes to liability, the court held that there was sufficient evidence to permit the Crown to advance the second theory.

The judge concluded the jury could reasonably find the accused liable as either the shooter or a joint principal who arranged the killing.

During a murder trial, the prosecution sought to admit rap lyrics recorded by the accused while in custody and later posted online.

The Crown argued the lyrics demonstrated adherence to a “code of silence” relevant to motive for the killing of a witness who had previously testified against the accused.

The defence objected on the grounds that the lyrics constituted prejudicial bad character evidence and that the evidence was introduced too late in the trial.

The court held that the lyrics were relevant and had probative value as a potential admission against interest and as evidence supporting the Crown’s motive theory.

The court concluded the probative value outweighed any prejudicial effect and ruled the lyrics admissible.

The accused is charged with first-degree murder.

The prosecution sought to introduce a video re-enactment created by the police to demonstrate that a distinctive jacket found in the accused's residence could be the same jacket worn by the suspect in a poor-quality security video.

The defence objected to the admissibility of the re-enactment, arguing prejudice due to late disclosure and differing conditions.

The court held that the probative value of the re-enactment outweighed any prejudice from its late disclosure, and that differences in conditions could be addressed through cross-examination and jury instructions.

The video re-enactment was ruled admissible.

In a first-degree murder trial, the Crown sought to introduce evidence of prior discreditable conduct, specifically that the deceased had previously identified the accused and his brother as the perpetrators of an earlier attempted murder.

The charge against the accused was withdrawn after he spent 13 months in custody, and his brother was acquitted.

The Crown argued this history provided a motive for the murder.

The accused objected, citing issue estoppel and abuse of process.

The court ruled the evidence admissible to show motive, finding that issue estoppel did not apply because the Crown was not trying to prove the accused committed the prior offence, but rather that the accusation and resulting incarceration created animus.

The court also ruled on several related evidentiary issues, excluding highly prejudicial evidence such as the accused's tattoo and hearsay regarding retaliation.

In a first degree murder prosecution, the Crown sought to introduce evidence that the accused was involved in two fights while in custody with two individuals later implicated in the murder.

The Crown argued the evidence was relevant to demonstrate the nature of the relationship and loyalty between the accused and those individuals.

The court applied the rule against admitting prior discreditable conduct and assessed whether the probative value outweighed the prejudicial effect.

Because the defence admitted that the individuals were acquaintances and the proposed evidence added little probative value while posing a risk of propensity reasoning by the jury, the evidence was excluded.

The accused brought a Charter application seeking exclusion of evidence obtained from cell phones seized under a search warrant, arguing that the Information to Obtain failed to establish reasonable and probable grounds and lacked particularization that cell phones would be found in the residence.

The court held that the affiant reasonably believed a suspect seen on security video was using a cell phone and that police knowledge of the accused’s cell phone use supported the inference that such devices could contain relevant investigative information.

The court further found that it was a reasonable inference that a suspect who used a cell phone might keep it at his residence.

Reviewing the ITO as a whole, the court concluded that reasonable and probable grounds existed and that the warrant was valid.

The Charter application was dismissed.