Greg Hendry

The accused brought an application for a stay of proceedings, arguing that his right to a trial within a reasonable time under s. 11(b) of the Charter was violated.

The total delay to the expected time of trial was approximately 61 months.

The court applied the Jordan framework and deducted periods of defence delay and exceptional circumstances, including the COVID-19 pandemic, the complainant's pregnancy, a judge's illness, and a mistrial caused primarily by the Crown's failure to provide notice regarding a s. 276 issue.

The net delay was calculated at 23 months, well below the 30-month presumptive ceiling.

The application was dismissed.

The defendant was charged with impaired driving and refusing to provide a breath sample following a traffic stop on October 21, 2017.

The defendant challenged the charges on Charter grounds, alleging violations of sections 8, 9, and 10(b).

The court found that while the arrest was lawful and the defendant's section 9 rights were not breached, the police violated the defendant's right to counsel of choice under section 10(b) by failing to adequately facilitate contact with counsel of choice and by not informing the defendant of the option to contact an alternative lawyer.

The evidence of refusal was excluded under section 24(2) of the Charter.

However, the court found the defendant guilty of impaired driving based on the officer's observations and video evidence from the police division.

The Crown applied for prerogative writs to quash a preliminary hearing judge's decision to continue an ongoing preliminary inquiry after Bill C-75 came into force.

Bill C-75 amended s. 535 of the Criminal Code to eliminate preliminary inquiries for offences with a maximum penalty of less than 14 years.

The Superior Court dismissed the Crown's application, holding that the amendments do not apply retrospectively to a preliminary inquiry that had already commenced, as doing so would affect substantive rights and lead to absurd results.

The accused was charged with "Over 80" (operating a motor vehicle with a blood alcohol concentration in excess of the legal limit).

The sole issue was whether the accused's Charter rights under s. 10(b) (right to counsel) were breached.

The accused requested to speak with her lawyer of choice, Karl Toews.

Police made six attempts to contact him over 45 minutes during business hours but were unsuccessful.

Police offered the accused the option of contacting another lawyer or duty counsel, which she declined.

The court found no breach of s. 10(b) rights because the accused failed to exercise reasonable diligence in exercising her right to counsel by declining the offer of free legal aid duty counsel.

The court distinguished the case from precedents where accused persons had been found to be duly diligent.

The accused was convicted.

During a criminal trial, the accused sought to introduce the contents of text messages from cell phone records to show he was not the user of a specific phone number, arguing the messages were circumstantial evidence and not hearsay.

The Crown objected.

The court held that the text messages were implied assertions being tendered for the truth of their contents, and therefore constituted presumptively inadmissible hearsay.

The court further found that the messages did not meet the criteria of necessity and reliability under the principled exception to hearsay, as they were devoid of context and the declarants were unavailable for cross-examination.

The application to instruct the jury on a non-hearsay use was dismissed.

During a joint trial for first-degree murder, the trial judge ruled on several motions.

The judge excused a prospective juror for obvious partiality under s. 632(c) of the Criminal Code.

A motion to sever one of the co-accused due to his counsel's illness was dismissed, as the jury was willing to wait and the public interest favoured a joint trial.

The judge also dismissed a Charter application alleging that the consumption of a DNA negative control by the Centre of Forensic Sciences breached the accused's rights, finding the control was an analytical tool rather than first-party disclosure.

Finally, a request for a mid-trial instruction regarding an in-dock identification was denied, with the judge opting to provide a general warning about eyewitness identification instead.

The Crown and defence brought multiple pre-trial motions in a first-degree murder case.

The court ruled on various procedural and evidentiary issues, including denying the Crown's request to shackle the accused and the defence's request to sit at counsel table.

The court permitted the defence to introduce alternate suspect evidence, finding an air of reality to the claim.

The court allowed the Crown to introduce post-offence conduct evidence regarding changes in hairstyle and phone numbers, but excluded bad character evidence regarding prior firearm possession due to its prejudicial effect.

The court also found a section 7 Charter breach due to the police's unacceptable negligence in losing a witness interview DVD, but ordered alternative remedies rather than excluding the witness's evidence.

During jury deliberations in a first-degree murder trial, the jury requested to take a view of the apartment complex where the shooting occurred.

The Crown opposed the request due to logistical and security concerns, while one of the accused argued a view constitutes real evidence.

The trial judge refused the request, finding that a view would not provide a real and demonstrable advantage given the extensive photographic and video evidence already adduced.

Furthermore, the judge held that a view at the deliberation stage was not in the interests of justice due to the passage of time, the risk of the jury drawing untested inferences, and significant logistical challenges.

During a sentencing hearing, defence counsel objected to portions of several victim impact statements and requested that the offending portions be excised before the statements were received.

The court declined to redact the statements in advance, ruling that pursuant to s. 722(8) of the Criminal Code, the statements would be provisionally accepted and the court would disregard any irrelevant or inadmissible portions.

The court also provided directions on the order of proceedings for the remainder of the sentencing hearing.

During a sentencing hearing for manslaughter, the offender filed an affidavit seeking enhanced credit for harsh pre-sentence custody conditions.

The Crown sought to cross-examine the offender 'at large' to elicit aggravating factors, arguing section 724(3)(c) of the Criminal Code does not limit cross-examination.

The court dismissed the Crown's request, ruling that statutory interpretation requires reading the provision in context, which limits cross-examination to the specific contested fact of the jail conditions.

The accused were jointly charged with first-degree murder.

During pre-charge conferences, the Crown and defence counsel raised several issues regarding the jury instructions.

The court declined the Crown's request to leave section 21(2) of the Criminal Code and unlawful confinement under section 231(5)(e) as routes to liability, finding insufficient evidence to support those theories.

The court also dismissed defence requests to remove planning and deliberation or section 229(a)(ii) intent from the charge for one of the accused, finding sufficient circumstantial evidence for the jury to consider.

Further defence requests for a specific identification instruction and modifications to the summary of eyewitness testimony were also dismissed.

During a first degree murder trial, the Crown sought to introduce evidence that the accused had been in custody for two years prior to the murder.

The Crown argued this evidence was necessary to prove the accused did not have access to a cell phone during that time, thereby refuting a potential defence claim that the accused was a contact in the deceased's phone.

The defence offered to admit the accused was 'out of the area' without cell phone access for two months.

The court held that the extended two-year period of non-access was irrelevant.

Furthermore, the court ruled that even if relevant, the prejudicial effect of revealing the accused's prior incarceration to the jury outweighed its probative value, and prohibited the Crown from leading the evidence.

In a murder trial, the Crown applied to exclude references to the name 'CJ' from the deceased's phone records, arguing the evidence was irrelevant and hearsay.

A co-accused also sought to redact text messages involving 'Scarface' on similar grounds.

The court dismissed the applications, finding the evidence relevant to the live issue of DNA transfer and identification.

The court held that the admission of the contact list and text messages engaged issues of authentication rather than hearsay, as they were not being adduced for the truth of their contents but to determine whether the communications were actually made by the accused.

During a jury trial, the Crown sought to file a DNA expert's written report as an exhibit after the expert had already provided viva voce evidence.

The defence objected, arguing the report was prejudicial.

The court dismissed the Crown's request, ruling that the report was inadmissible because it added nothing to the oral testimony, contained matters not explored in evidence, and risked misleading or confusing the jury.

The court emphasized that the expert's evidence is their testimony, not their report.

During a criminal trial for a shooting death, the court issued written reasons for several oral evidentiary rulings.

The court ruled that the defence could not elicit self-serving admissions from a Crown witness during cross-examination.

The court allowed two photographs to be entered as numbered exhibits, finding them relevant and authenticated.

The court permitted the Crown to re-examine a witness regarding phone numbers to clarify answers given in cross-examination, but denied re-examination on the circumstances of an identification, finding it more prejudicial than probative.

Finally, the court prohibited the defence from introducing investigative hearsay about a third-party suspect without a proper voir dire.

The accused, charged with first degree murder, sought to exclude cell phone numbers they had provided to their probation officers, which were subsequently disclosed to the police.

The accused argued the disclosure violated their rights under sections 7 and 8 of the Charter, and that the statements were not voluntary.

The court dismissed the application, finding that the probation officers were not persons in authority at the time the numbers were provided.

Furthermore, the court held there was no reasonable expectation of privacy in phone numbers, and the disclosure was lawfully permitted under the Ministry of Correctional Services Act.

The court also found no evidence that the accused were compelled to provide the numbers in violation of section 7.

The phone numbers were ruled admissible.

The accused were on trial for first degree murder.

During the trial, the defence filed a section 24(1) Charter application alleging a breach due to the Centre of Forensic Sciences consuming a 'negative control' sample during DNA testing.

The Crown sought directions, arguing the court should determine the relevancy of the consumed sample before the Crown's DNA expert testified, and restrict cross-examination if relevance was not established.

The court dismissed the Crown's request, holding that the defence was entitled to cross-examine the expert on the DNA extraction process, including the use and consumption of the negative control.

The court deferred ruling on the Charter application until the end of the trial, when the full evidentiary record would allow for a proper assessment of prejudice.

During a criminal trial, the Crown sought to adduce opinion evidence from a police officer that clothing worn by a male in a surveillance video resembled clothing she had previously observed the accused wearing.

The defence objected, arguing the officer was in no better position than the jury to make this comparison.

The trial judge reconsidered and reversed an earlier ruling, holding that the officer's opinion was not helpful to the trier of fact and was more prejudicial than probative.

The jury, equipped with the video as real evidence, could make the comparison themselves without the officer's narration or opinion.

During a criminal trial, the defence sought to introduce Telus cell phone records as a numbered exhibit during the cross-examination of a Wind Mobile employee.

The Crown objected, arguing the witness could not act as a conduit for records from a different company.

The court allowed the records to be marked as an exhibit, finding them relevant and sufficiently authentic under section 30 of the Canada Evidence Act.

However, the court ruled that the witness could not be questioned on the contents of the Telus records, as she lacked personal knowledge of them.

During a criminal trial, the Crown sought leave to communicate with its witness, a cell phone security analyst, while she was still under cross-examination.

The defence had pointed out a geographical and temporal discrepancy in the cell phone records, and the Crown wished to direct the witness to investigate the discrepancy.

The court granted leave, noting that the witness was providing factual evidence about the operation of the network and that investigating the discrepancy would prevent further delay.