James Cavanagh

The Crown brought a pre-trial application to admit similar fact evidence against the accused, Mohamad Barkhadle, who is charged with first-degree murder involving strangulation during a sexual assault.

The Crown sought to introduce evidence of three prior incidents where Mr. Barkhadle allegedly choked women in sexual circumstances.

The court analyzed the admissibility of this evidence, focusing on its relevance to the nature of the actus reus, motive, and identification.

The court found a "striking similarity" in Mr. Barkhadle's "peculiar and distinctive method" of using a choke hold to overcome resistance to sexual activity, deeming it a "signature." Balancing the high probative value against the potential for moral and reasoning prejudice, the court ruled the similar fact evidence admissible.

This decision provides the reasons for various pre-trial and trial motions in a criminal case where the accused, Alam Buoc, was ultimately convicted of two counts of second-degree murder and one count of attempted murder after a 12-week jury trial.

Key rulings included the refusal to discharge a juror despite pre-trial publicity, the allowance of remote witness testimony due to the COVID-19 pandemic, and the dismissal of a s. 11(b) Charter application for unreasonable delay, with significant delay attributed to the accused's conduct and the pandemic.

The court also admitted hearsay statements under the res gestae exception and detailed the extensive role of amicus curiae in assisting the self-represented accused throughout the complex proceedings, which included a mistrial due to the pandemic.

Following a judge-alone criminal trial, the court convicted the accused of sexual interference and sexual assault arising from repeated sexual touching of a child neighbour in an apartment-building setting.

Applying the W.(D.) framework, the court rejected the accused’s denial as inconsistent, implausible, and contradicted by other evidence, while accepting the complainant’s evidence as credible and reliable notwithstanding alleged discrepancies about surrounding circumstances and timing of disclosure.

The court held that touching the complainant’s vaginal area, both under clothing in a tent and over clothing on a balcony, was intentional and for a sexual purpose under s. 151, and also constituted intentional application of force in circumstances of a sexual nature under s. 271.

A publication ban under s. 486.4 remained in place.

The three offenders were convicted of kidnapping, unlawful confinement, break and enter, and sexual assault after breaking into the victim's apartment, confining her, and sexually assaulting her with hair removal cream.

The principal offender, who orchestrated the attack out of revenge and distributed intimate images of the victim online, was sentenced to 7 years in prison.

The two co-offenders, who acted as aiders and did not participate in distributing the images, were each sentenced to 4 years in prison.

All offenders received credit for pre-sentence custody and strict bail conditions.

The accused, Alam Buoc, applied for a mistrial in his ongoing jury trial for two counts of first-degree murder and one count of attempted murder.

The trial, which began in February 2020, was adjourned in March 2020 due to the COVID-19 pandemic.

Subsequent delays, juror discharges due to age and health concerns, a juror's injury, another juror's employment issues, and new government restrictions in Ottawa due to a second wave of COVID-19, cumulatively impacted the fairness of the trial process.

Despite the Crown's opposition, the court declared a mistrial, finding no other remedy for the fundamental flaws that had arisen.

The court apportioned costs between the defendants following a 39-day trial where the plaintiffs were awarded approximately $12 million in damages.

The Jantzi defendants were found 80% at fault for a motor vehicle accident, and All Star Tap & Grill 20% at fault for over-serving alcohol, with the plaintiff Wesley Hummel 25% contributorily negligent.

The Jantzi defendants argued All Star should bear 80% of post-offer costs due to their refusal to settle, while All Star argued costs should follow the trial's liability apportionment (75% Jantzi, 25% All Star after contributory negligence).

The court considered factors under Rule 57.01 and Section 131(1) of the Courts of Justice Act, including offers to settle and policy limits.

Ultimately, the court ordered the Jantzi defendants to pay one-third of the plaintiffs' costs and All Star Tap & Grill to pay two-thirds, based on their respective insurance policy limits ($1 million for Jantzi, $2 million for All Star).

The accused brought a pre-trial Charter application seeking to exclude a loaded firearm found by police during a warrantless search of his vehicle.

The police were responding to a noise complaint and found the accused and others near the vehicle, which the accused denied owning before leaving the scene.

The court found no arbitrary detention or breach of the right to counsel, but concluded the warrantless search violated section 8 of the Charter.

However, applying the Grant framework, the court admitted the evidence under section 24(2), finding that the breach was not at the most serious end of the scale, the accused's privacy interest was diminished, and there was a strong public interest in adjudicating the serious firearm charges on their merits.

The accused, Hamze Abdi Ahmed, was charged with assault with a weapon and aggravated assault.

The central issue was whether the Crown proved beyond a reasonable doubt that the accused stabbed the complainant, Jared Kakegamic, or if the complainant stabbed himself during an altercation.

The court found the Crown witnesses credible and rejected the defence's version of events, including the accused's testimony and that of his witnesses, due to inconsistencies and lack of corroboration.

The court relied on the complainant's immediate 911 call, the paramedic's testimony, and Tracy Hultquist's account.

The accused was found guilty on both counts.

The accused, C.R., was sentenced after being convicted of 10 counts of abuse against four of his children, including aggravated assault (tattooing), assault with a weapon (knife), assault causing bodily harm, unlawful confinement, and simple assault.

The court considered the gravity of the offences, C.R.'s personal circumstances, and aggravating and mitigating factors, with primary consideration given to denunciation and deterrence as mandated for offences against children.

The Crown sought 6-7 years incarceration, while the defence sought 2-2.5 years.

The court imposed a global sentence of four years incarceration, crediting 35 days for pre-sentence custody, resulting in 3 years and 330 days in a penitentiary.

The sentence was broken down into concurrent and consecutive terms for the various counts.

The accused was charged with wilfully attempting to obstruct, pervert or defeat the course of justice by failing to appear as a witness for a murder trial, contrary to section 139(2) of the Criminal Code.

The accused had been an eyewitness to a killing and was subpoenaed to testify at the retrial of the accused murderer.

The accused left Canada and travelled internationally, deliberately avoiding his obligation to testify.

The Crown established that the accused had been properly served with a subpoena and had knowledge of his obligation to appear.

The sole issue at trial was whether the actus reus of the offence had been proven.

The court found that despite clerical errors on the subpoena, it was valid and the accused had a legal duty to attend court.

The accused was found guilty.

The accused was convicted of attempt murder, robbery with violence, forcible confinement, and weapons offences following a home invasion of a 101-year-old victim.

The accused bound the victim, placed a plastic bag over his head, and left him to suffocate.

The court found the accused's actions were part of a pattern of violent behaviour, noting his prior convictions for three similar suffocation murders.

Emphasizing the paramount need to protect the public, the court imposed a life sentence for the attempt murder and robbery charges, with a 10-year period of parole ineligibility.

During a trial for robbery, forcible confinement, and attempted murder, the Crown brought an application to cross-examine the accused on the underlying facts of his prior convictions for three suffocation murders.

The court had previously dismissed a similar fact application to admit this evidence.

However, after the accused indicated he would testify that he did not understand the deadliness of a plastic bag fastened over someone's head, the Crown sought to revisit the ruling.

The court granted the application, finding that the accused's anticipated testimony constituted a material change in circumstances and that the defence could not use the prior exclusionary ruling as a sword to mislead the jury.

The accused, charged with robbery, forcible confinement, and attempted murder of an elderly victim, brought a Corbett application to prevent the Crown from cross-examining him on his prior convictions for a triple murder.

The accused argued the evidence was highly prejudicial.

The court dismissed the application, finding that the accused's credibility regarding his intent was the central issue in the trial, and the probative value of the prior convictions outweighed the potential prejudice, which could be addressed through a proper jury instruction.

The accused, charged with attempted murder, robbery, forcible confinement, and weapons offences, brought pre-trial motions to sit at the counsel table and to sever the firearms charges.

The court dismissed the seating application, finding the accused posed a security risk and that his presence in the prisoner's box would not cause undue prejudice.

The court also dismissed the severance application, concluding that the evidence was not complex, the counts were factually connected, and a separate trial would cause further delay and consume additional resources.

The Crown applied to introduce similar fact evidence of three murders (the "Garon murders") committed by the accused, Ian Bush, in 2007, at his trial for the attempted murder of Ernest Côté in 2014.

The Crown sought to use this evidence to prove intent, arguing striking similarities between the acts.

The defence conceded the probative value but argued overwhelming prejudice.

The court, applying the balancing test of probative value versus prejudicial effect, denied the Crown's application, finding that the highly inflammatory nature and gravity of the triple murders would overwhelmingly prejudice the jury, outweighing the probative value, and that a limiting instruction would be ineffective.

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 accused, Marc Leduc, pleaded guilty to aggravated sexual assault, attempted choking to overcome resistance, break and enter, and breach of probation against Rita Denobriga.

The offences, which occurred in Ms. Denobriga's apartment, involved premeditation, the use of a knife, prolonged violence, and a life-threatening chokehold, causing severe physical and emotional trauma to the victim.

The court considered Leduc's extensive criminal record, including two prior first-degree murder convictions (under appeal), and his lack of remorse or psychiatric explanation.

Emphasizing protection of society, denunciation, and deterrence, the court concluded that Leduc posed an ongoing danger.

A life sentence was imposed for the aggravated sexual assault and attempted choking, with concurrent sentences for the other offences, and parole ineligibility set at 10 years.

The Crown applied under s. 714.2 of the Criminal Code to adduce evidence from a witness, Omar Ahmed, via video link, as he had been deported to Somalia after the first trial.

The Defence opposed, arguing that the witness should testify in person and that cross-examination via video link would be hampered.

The court ruled that s. 714.2 is mandatory and does not require all efforts to secure in-person testimony.

The Defence failed to satisfy the court that video link testimony would be contrary to fundamental justice principles, as video technology is regularly used and does not deprive an accused of a fair trial or the opportunity to confront a witness.

The application was granted, with conditions for video quality and process.

During a homicide trial, the Crown applied to have the jury instructed on party liability for murder under s. 21(2) of the Criminal Code, arguing that the accused could be found guilty as an aider or abettor even if he was not the principal shooter.

The trial judge dismissed the application, finding that the evidence only supported the theory that the accused was the principal.

There was no evidence that the accused provided actual assistance or intended to help or encourage someone else to commit the offence.

The Crown applied to admit the hearsay statements and prior trial testimony of a witness, Ali Abdul-Hussein, who failed to appear for the accused's murder trial.

The witness had previously given a sworn video statement implicating the accused but recanted at the first trial, claiming he lied to secure a plea deal.

The court dismissed the application, finding that the evidence was inadmissible under s. 715(1) of the Criminal Code because the accused was denied a full opportunity to cross-examine the witness at the first trial.

Furthermore, the statements did not meet the threshold reliability requirement under the principled exception to the hearsay rule due to the witness's history of lying and the lack of independent corroborating evidence.