Gil D. McKinnon

The Court held that issue estoppel in a prior jury matter applies only when a finding in favour of the accused was logically necessary to the acquittal.

Because the acquittals on criminal organization counts could be explained by more than one route, including failure to prove association elements, the Crown was not barred from litigating whether the Hells Angels was a criminal organization in later proceedings.

The appellant challenged a conviction for sexual assault, arguing error in admitting a prior sexual-assault conviction as similar fact evidence on identity and in restricting a voir dire challenge to that prior verdict.

The Court held that a prior conviction can constitute reliable 'some evidence' linking an accused to similar act conduct when identity is put in issue.

It further held that while challenges to prior convictions are not categorically barred at the voir dire stage, they may be limited where there is no reasonable likelihood of affecting admissibility.

The Court found no reversible error in the trial judge's admissibility ruling or ultimate identity finding on the trial record.

The appellant was arrested for multiple assaults and asserted his right to counsel.

After failing to reach his lawyer of choice, he consulted with duty counsel and expressed satisfaction with the advice.

During the subsequent police interrogation, he repeatedly requested to speak with a lawyer and have one present, but the police denied these requests and continued questioning until he confessed.

The Supreme Court of Canada dismissed the appeal, holding that s. 10(b) of the Charter does not require the presence of counsel during an interrogation, nor does it require police to provide further opportunities to consult counsel absent a change in circumstances.

The appellant was arrested for murder, advised of his right to counsel, and spoke with his lawyer twice before being interviewed by police.

During the five-hour interview, the appellant repeatedly stated he had nothing to say and wished to speak to his lawyer again.

The police refused further consultation and continued questioning, eventually obtaining a confession.

The Supreme Court of Canada held that section 10(b) of the Charter does not mandate the presence of counsel throughout an interrogation, nor does it require police to provide multiple opportunities to consult counsel unless there are changed circumstances, such as new procedures, a change in jeopardy, or reason to believe the detainee did not understand their rights.

As no such circumstances existed, the appeal was dismissed.

The appellant was charged with multiple counts of first degree murder.

At trial, the Crown argued he was the sole perpetrator, while the defence suggested others were involved.

The trial judge initially instructed the jury that they must acquit if they had a reasonable doubt the appellant was the actual shooter.

Following a jury question, the judge amended the instruction to include liability if the appellant was 'otherwise an active participant'.

The appellant was convicted of second degree murder and appealed, arguing the amended instruction undermined trial fairness.

The Supreme Court of Canada dismissed the appeal, finding that the instructions adequately conveyed the alternate routes to liability and no miscarriage of justice occurred.

The appellants were convicted of first degree murder.

The Crown's case relied heavily on the testimony of two unsavoury witnesses.

The trial judge gave a Vetrovec warning, instructing the jury to look for confirmation of their testimony.

The appellants appealed, arguing the warning failed to instruct the jury that confirmatory evidence must be independent and material.

The Supreme Court of Canada dismissed the appeals, holding that while the warning was not a model to follow, the charge as a whole adequately conveyed the need for special scrutiny and the danger of convicting on unconfirmed evidence.

The Court also applied the curative proviso to an error in the trial judge's instructions on drawing inferences from proven facts.

The appellants, two brothers, were convicted of second degree murder following a joint trial.

The evidence against them included out-of-court statements made to an accomplice.

The appellants appealed their convictions, arguing the trial judge erred in his Vetrovec warning by allowing the jury to use statements admissible against only one accused to bolster the accomplice's credibility against the other.

They also argued the trial judge erred by giving a Duncan instruction, suggesting inculpatory statements carry more weight than exculpatory ones.

The Supreme Court of Canada dismissed the appeals, finding the Vetrovec warning was proper and contained adequate cautions.

While the Court held that the Duncan instruction should not be adopted by Canadian trial courts, it concluded the instruction did not mislead the jury in the context of the charge as a whole.

The appellant was convicted of sexual interference after the trial judge admitted an incriminating statement made to police.

The statement was obtained after the interrogating officer confronted the appellant with a prior statement that had been obtained in violation of his right to counsel.

The Supreme Court of Canada allowed the appeal and ordered a new trial, finding that the impugned statement was temporally, causally, and contextually connected to the earlier Charter breach.

The Court held that admitting the statement would bring the administration of justice into disrepute, as the police deliberately used the tainted statement to elicit the confession.

The appellant was arrested for second degree murder and advised of his right to counsel.

During police interviews, he repeatedly asserted his right to silence, stating he did not want to talk.

The interviewing officer persisted in questioning him, and the appellant eventually made incriminating admissions.

The trial judge admitted the statements, finding them voluntary and not obtained in breach of section 7 of the Charter.

The Court of Appeal upheld the conviction.

The Supreme Court of Canada dismissed the appeal, holding that police persistence in questioning a detainee who has asserted the right to silence does not automatically violate section 7, provided the statements remain voluntary and the detainee is not denied the freedom to choose whether to speak.

The appellants were convicted of first-degree murder at their retrial after their initial convictions were overturned.

At the retrial, they testified voluntarily but gave different accounts than they had at their first trial.

The Crown cross-examined them on these prior inconsistent statements to impeach their credibility.

The appellants argued this violated their right against self-incrimination under s. 13 of the Charter.

The Supreme Court of Canada dismissed the appeals, overruling its previous decision in R. v. Mannion.

The Court held that s. 13 does not protect an accused who voluntarily testifies at a retrial on the same indictment from being cross-examined on prior voluntary testimony, as the compulsion required to trigger the s. 13 quid pro quo is absent.

The appellant was convicted of first degree murder for his role in luring the victim to a car lot where he was shot.

At trial, the Crown introduced double hearsay evidence from a co-conspirator and wiretap evidence of a three-way phone call.

The appellant appealed, arguing the co-conspirator's exception to the hearsay rule should be revisited under the principled approach to hearsay, and that the wiretap evidence exceeded the authorization.

The Supreme Court of Canada dismissed the appeal, holding that the Carter rule for co-conspirator hearsay meets the necessity and reliability requirements of the principled approach.

The Court also upheld the admission of the wiretap evidence, finding the named target never ceased to be a party to the conversation.

The appellant was convicted of committing an indecent act in a public place after neighbours observed him masturbating in his illuminated living room through an uncovered window.

The trial judge found he had converted his living room into a public place.

The Supreme Court of Canada allowed the appeal and entered an acquittal, holding that a private living room is not a 'public place' within the meaning of the Criminal Code.

The Court concluded that 'access' to a public place requires physical access, not merely visual access from the outside.

The accused was convicted of sexual assault and declared a dangerous offender, receiving an indeterminate sentence.

The predicate offence occurred before the enactment of the long-term offender provisions.

The Supreme Court of Canada, applying its concurrent decision in R. v. Johnson, held that the sentencing judge was required to consider the long-term offender provisions before declaring the accused a dangerous offender.

The Crown's appeal was dismissed and a new sentencing hearing was ordered.

The Crown appealed a decision ordering a new sentencing hearing for an offender who was declared a dangerous offender and sentenced to an indeterminate prison term.

The sentencing judge had not considered the newly enacted long-term offender provisions because the predicate offence occurred prior to their enactment.

The Supreme Court of Canada dismissed the appeal, holding that a sentencing judge must consider the long-term offender provisions prior to declaring an offender dangerous.

Furthermore, under s. 11(i) of the Charter, the offender is entitled to the benefit of the lesser punishment, requiring the judge to consider the long-term offender provisions even for offences committed prior to the amendments.

The appellant was convicted of second degree murder after an elderly woman was robbed, hog-tied, and left to die of asphyxiation.

The appellant appealed, arguing the trial judge misdirected the jury by applying the 'beyond de minimis' standard of causation from Smithers rather than the 'substantial cause' standard from Harbottle.

The Supreme Court of Canada dismissed the appeal, holding that the Smithers standard applies to all homicide offences, including second degree murder, while the Harbottle standard applies only to first degree murder under s. 231(5) to determine if the accused's participation warrants the increased stigma and penalty.

The Court suggested that trial judges may express the Smithers standard positively as a 'significant contributing cause'.

The appellant was convicted of breaking, entering, and possession of stolen property.

At trial, a defence witness testified that he, not the appellant, committed the crime.

The Crown cross-examined the witness on his knowledge of the protection against self-incrimination under s. 13 of the Charter.

The trial judge disbelieved the witness and convicted the appellant.

The Court of Appeal upheld the conviction.

The Supreme Court of Canada held that cross-examining a witness on their knowledge of s. 13 should rarely be permitted, as its prejudicial effect generally outweighs its probative value.

However, the Court applied the curative proviso, finding that the trial judge's reliance on the impugned testimony was minimal and no substantial wrong or miscarriage of justice occurred.

The appeal was dismissed.

The accused was charged with possession of child pornography under s. 163.1(4) of the Criminal Code.

He challenged the constitutionality of the provision, arguing it violated his right to freedom of expression under s. 2(b) of the Charter.

The Supreme Court of Canada held that while the prohibition on possession of child pornography infringes s. 2(b), it is largely justified under s. 1 as a reasonable limit to protect children from harm.

However, the Court found the law overbroad in two peripheral applications: self-created expressive material held exclusively for personal use, and private recordings of lawful sexual activity created by or depicting the accused for private use.

The Court read in exceptions for these two categories and upheld the law, allowing the Crown's appeal and remitting the matter for trial.

The accused and a co-perpetrator participated in a violent beating that left the victim dead.

The accused stomped on the victim's head.

At trial, the Crown's medical expert initially testified the accused caused the death, but later agreed with the defence expert that the co-perpetrator caused the fatal injuries.

The Crown maintained its theory but also argued co-perpetrator liability.

The accused was convicted of second degree murder.

The Court of Appeal substituted a manslaughter conviction, finding the murder verdict unreasonable.

The Supreme Court of Canada allowed the Crown's appeal, reaffirming the Yebes test that the reasonableness of a verdict is a question of law.

The Court held that a properly instructed jury could reasonably have found the accused had the requisite intent for murder as a party to the offence, and restored the second degree murder conviction.

The accused admitted killing his spouse but argued he acted in an automatistic dissociative state allegedly triggered by insulting words.

The Court clarified a general two-step framework for automatism, requiring the defence to establish a proper evidentiary foundation and then requiring the trial judge to determine whether the condition is mental disorder or non-mental disorder automatism by reference to internal cause, continuing danger, and policy factors.

The majority held that the alleged condition was properly treated as a disease of the mind and that only mental disorder automatism should have gone to the jury.

The Court also held that disclosure of the defence psychiatric report caused no miscarriage of justice and that provocation may still mitigate sentence after reducing murder to manslaughter.

Both the conviction appeal and the Crown sentence appeal were dismissed.

The aboriginal appellant pled guilty to manslaughter for the killing of her common law husband and was sentenced to three years' imprisonment.

The sentencing judge did not give special consideration to her aboriginal background under s. 718.2(e) of the Criminal Code, noting she lived off-reserve.

The Supreme Court of Canada held that s. 718.2(e) applies to all aboriginal offenders wherever they reside and requires sentencing judges to consider unique systemic or background factors and appropriate restorative sanctions.

Although the trial judge erred in his approach, the appeal was dismissed because the three-year sentence was fit given the seriousness of the offence and the fact that the appellant had already been granted parole.