Howard Krongold

The accused, Ian Bush, faced charges of three counts of first-degree murder.

This decision addresses several pre-trial applications: the Crown's application to admit hearsay statements and similar fact evidence, and the Defence's applications to exclude the accused's Tax Court of Canada (TCC) file and seized property.

The court granted the Crown's hearsay application, finding the statements necessary and reliable.

It dismissed the Crown's similar fact application, concluding that despite high similarity, the overwhelming prejudice from extensive media coverage of the similar act (attempted murder of a 101-year-old veteran) outweighed its probative value.

The court also dismissed the Defence's applications to exclude the TCC file and seized property, finding them relevant and admissible as evidence of motive and identity.

The applicant sought state funding for his defence under section 7 of the Charter.

Legal Aid Ontario (LAO) offered a certificate conditional on the applicant's spouse consenting to a lien on the matrimonial home, which was registered solely in her name.

The spouse refused.

The court found that issue estoppel did not apply to a previous funding decision as the circumstances had changed (LAO's condition).

The court also determined that the applicant could not reasonably be expected to pursue an application under the Family Law Act to encumber the matrimonial home, as the Act's provisions are for marital breakdown, not ongoing relationships, and the applicant's unregistered interest was not capable of being charged.

Citing precedent, the court affirmed that state funding should not be withheld if family members refuse to assist, provided the applicant personally lacks means.

A conditional stay was issued.

Appeal from a conviction for sexual assault.

The appellant challenged the trial judge's reliance on the complainant's willingness to undergo a sexual assault examination and prophylactic medications, the finding of painful intercourse, and alleged reversal of the burden of proof.

The Court of Appeal upheld the conviction, finding no error in the trial judge's assessment of credibility, his consideration of medical evidence corroborating the complainant's account, or his application of the burden of proof.

The trial judge properly considered the complainant's physical injuries, demeanor, identification of the perpetrator, and the appellant's exclusive opportunity to commit the assault.

The Crown appealed the respondent's acquittal on drug trafficking and related charges.

The trial judge had excluded evidence (heroin and cash) under s. 24(2) of the Charter after finding a s. 8 violation regarding a wiretap authorization targeting the respondent's cell phone during a murder investigation involving his son.

The Court of Appeal allowed the appeal, finding the trial judge erred by taking a piecemeal approach to the evidence in the Information to Obtain (ITO) rather than a contextual one, and by impermissibly substituting his own view for that of the issuing justice.

The acquittals were set aside and a new trial ordered.

The accused, charged with attempted murder and aggravated assault, brought an O'Connor application seeking third-party records from the investigating police service.

The requested records included the training records of the interrogating officers and gang intelligence information regarding several witnesses.

The court dismissed the application, finding that the officers' training was irrelevant to the voluntariness of the accused's statements, which depends on the officers' actual conduct.

The court also held that the gang intelligence information was protected by informer privilege and that compelling its production would improperly conscript the police to conduct investigations on behalf of the defence.

The accused brought a pre-trial motion seeking to exclude evidence of alleged flight as after-the-fact conduct in a prosecution for first-degree murder.

The Crown intended to tender evidence that the accused attempted to travel to Afghanistan shortly after the fatal stabbing, arguing that such conduct was relevant to consciousness of guilt and inconsistent with a claim of self-defence.

The defence argued the travel related to a pre-planned wedding trip and that the evidence would be more prejudicial than probative.

The court held that the relevance and admissibility of the alleged after-the-fact conduct could not be determined in the abstract prior to the evidentiary context of trial.

The application was therefore adjourned to be determined when the evidence is tendered at trial.

The appellant was convicted of attempted murder after breaking into his ex-girlfriend's home and attacking her with a knife.

He was sentenced to 11 years' imprisonment, less credit for pre-sentence custody.

He appealed the sentence, arguing the trial judge erred in balancing aggravating and mitigating factors.

The Court of Appeal dismissed the appeal, finding no error in principle and concluding the sentence fell within the acceptable range for attempted murder in a domestic context.

During a murder retrial, the defence sought a jury instruction alleging the Crown breached the rule in Browne v. Dunn by failing to cross‑examine the accused on several key aspects of his testimony.

The court reviewed the rule governing fairness in cross‑examination and the circumstances in which a failure to challenge a witness’s evidence may require remedial instructions.

Considering the trial context, the prior disclosure of the Crown’s theory, and the cross‑examination that did occur, the court held that no significant Browne v. Dunn breach by the Crown had occurred.

The accused had full opportunity to address the Crown’s theory during testimony and was not ambushed.

The requested jury instruction was therefore refused.

The appellant appealed a conviction for driving with a blood alcohol concentration exceeding 80 mg under the Criminal Code following a trial in the Ontario Court of Justice.

The appellant argued the trial judge misapplied the W(D) framework, failed to properly consider reasonable doubt, and improperly relied on a common-sense inference relating to bolus drinking.

The Superior Court held that the trial judge misdirected himself by relying on the inference from R. v. Paszczenko in circumstances involving alleged post‑driving alcohol consumption.

This misdirection affected the assessment of the accused’s evidence and credibility.

As the evidence was not overwhelming, the error could not be cured under the curative proviso.

The Crown sought certiorari review of a preliminary inquiry decision that discharged the accused on a charge of first degree murder but committed him to stand trial for second degree murder.

The Crown argued the preliminary inquiry justice exceeded jurisdiction by failing to consider the whole of the evidence and by rejecting inferences of planning and deliberation.

The reviewing court held that certiorari review is limited to jurisdictional errors and does not permit reconsideration of evidentiary inferences where the preliminary inquiry judge has considered the evidence.

The record showed the preliminary inquiry justice reviewed the evidence and expressly rejected the Crown’s proposed inferences.

Accordingly, no jurisdictional error occurred and the application was dismissed.

The appellant appealed his conviction for trafficking crack cocaine.

The sole issue at trial was identity.

The trial judge was unable to identify the appellant from surveillance photographs but relied on the opinions of police officers who identified the appellant in court.

The Court of Appeal held that the trial judge erred in relying on the officers' opinions, as they had no special knowledge or advantage over the judge in comparing the photographs to the appellant.

The in-dock identification was inherently frail, and the verdict could not be supported by the evidence.

The appeal was allowed and the conviction quashed.

The appellant appealed a conviction for refusing to provide a breath sample contrary to the Criminal Code.

The appellant argued that the trial judge erred in dismissing a Charter s. 10(b) claim relating to the right to counsel and in finding that the appellant refused to provide a breath sample.

The appeal court held that the trial judge’s reasons did not sufficiently explain the basis for concluding that the appellant made an unequivocal refusal, which is required for conviction.

On the evidence, the court could not identify a clear refusal prior to the charge.

The conviction was therefore set aside and a new trial ordered before a different judge.

The Court held that under s. 16(3) of the Canada Evidence Act, an adult witness with mental disabilities is competent if they can communicate evidence and promise to tell the truth.

Requiring abstract understanding of truth-telling obligations was rejected.

The acquittal was set aside and a new trial ordered.

The appellant appealed her conviction for having care or control of a motor vehicle while impaired, contrary to section 253(1)(a) and (b) of the Criminal Code.

She was found asleep in her car with keys in the ignition after a tire blowout, having called a tow truck.

The trial judge found she failed to rebut the presumption of intent to drive and had de facto care and control, concluding there was a realistic risk of danger.

The appellate court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or legal conclusions regarding intent to drive and realistic risk of danger.