James Cavanagh

The Applicant, charged with first-degree murder, sought to exclude call detail records obtained via search warrants, arguing violations of his s. 8 Charter rights.

The Applicant contended that the Informations to Obtain (ITOs) contained inaccuracies, lacked reasonable grounds to believe the records would afford evidence, and that police failed to file Reports to Justice as required by s. 489.1 of the Criminal Code.

The court found that while there were minor inaccuracies in the ITOs, they were made in good faith and, once excised, sufficient grounds remained for the warrants.

The court also found that the police's failure to file Reports to Justice constituted a s. 8 Charter breach but, following established jurisprudence, determined that this technical breach did not warrant the exclusion of evidence under s. 24(2) of the Charter, especially given the serious nature of the charge.

The application to exclude evidence was dismissed.

This decision addresses a voir dire application in a murder trial to determine the voluntariness and admissibility of three statements made by the accused to police.

The court found the August 22, 2006 telephone statement and the November 8, 2006 video statement to be voluntary and admissible.

Portions of the November 8, 2006 surreptitiously audio-recorded statement were deemed admissible, specifically those relating to the murder investigation, while police opinions and commentary on unrelated criminal investigations were excluded due to prejudicial effect outweighing probative value.

The court rejected arguments that the accused was induced, misled about his status or the use of the interview, or that the statements' prejudicial effect outweighed their probative value.

This is a preliminary inquiry decision determining whether there is sufficient evidence to commit seven accused persons to stand trial on charges of attempted murder, aggravated assault, unlawful confinement, and unlawful entry arising from a brutal attack on the victim in the early morning hours of November 17, 2013.

The Crown's theory is that the attack was undertaken in retaliation for an assault on the brother of one of the accused the previous day.

The court applies the prima facie case standard, examining whether there is evidence upon which a reasonable jury could return a verdict of guilty beyond a reasonable doubt on each element of each charge.

The decision addresses complex issues regarding the mens rea of attempted murder, the admissibility of hearsay statements, the evaluation of circumstantial identification evidence, and the requirements for party liability.

The accused applied for an order requiring that his murder trial be scheduled earlier than the agreed trial date because he would have been in custody for nearly four years by the time of trial.

Granting the request would effectively require the reassignment of one of the Crown prosecutors who was unavailable on earlier court dates.

The court held that the assignment of Crown counsel is an exercise of prosecutorial discretion belonging to the Attorney General and is reviewable only for abuse of process.

As no abuse of process or improper motive was alleged or established, the court declined to interfere with prosecutorial discretion.

The application for an earlier trial date was therefore dismissed.

The Crown brought a section 540(7) application seeking to admit witness statements as evidence at a preliminary inquiry without requiring the witnesses to testify.

The application involved four key witnesses: Jessica Walker, Samantha Daoust, Mark Sudiacal, and Jason Klein.

The Crown sought to admit their statements under the Criminal Code provision that permits justices to receive evidence that would not otherwise be admissible if the justice considers it credible or trustworthy.

The court admitted the statements of Daoust, Sudiacal, and Klein, as well as the videotaped statements of Walker, but excluded Walker's off-camera statement recorded in police notes.

The decision provides comprehensive guidance on the interpretation and application of section 540(7).

The Crown sought reconsideration of a preliminary inquiry judge's ruling denying a section 540(7) application to file transcripts of witness statements.

The initial judge had rejected the application as inadequately presented and lacking sufficient grounding.

The Crown subsequently renewed the application with a fuller record.

The presiding judge ruled that reconsideration was permissible, finding that the initial ruling was not a final determination on the merits of section 540(7) admissibility but rather a rejection of the application as presented.

The judge held that interlocutory evidentiary rulings can be reconsidered where there is no prejudice to the defence and where the interests of justice support reconsideration, particularly in preliminary inquiries where evidentiary errors cannot be appealed.

The accused was tried on two counts arising from an automobile collision: refusing to provide an evidential breath sample contrary to section 254(3) of the Criminal Code, and impaired driving.

The Crown alleged the accused was impaired by alcohol following a rear-end collision.

The court found that while the officer had reasonable and probable grounds to believe the accused had committed an impaired driving offence, the evidential breath demand was not made "as soon as practicable" as required by law, rendering it unlawful.

Additionally, the court found insufficient evidence of an unequivocal refusal due to the officer's failure to record the precise words constituting the alleged refusal.

On the impaired driving charge, the court found the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol.

The accused was acquitted on both counts.

The accused applied for a bail review under s. 522 of the Criminal Code after previously being detained on the secondary ground following a multi‑day show cause hearing.

The charges arose from an alleged group assault that left the victim with severe and life‑threatening injuries.

The court considered whether there had been a material change in circumstances and whether detention remained necessary under the secondary or tertiary grounds in s. 515(10).

The judge found the evidence against the accused relatively weak, consisting largely of presence at the scene and hearsay evidence of motive, with little direct evidence of personal participation.

A revised release plan involving residence with two sureties providing full‑time supervision constituted a material change sufficient to mitigate concerns about further offences or interference with the administration of justice.

The accused applied under s. 24(1) of the Charter for an order dispensing with prosecutorial consent to re‑elect the mode of trial from judge and jury to judge alone pursuant to s. 561 of the Criminal Code.

The accused argued that anticipated evidence of prior bad acts and allegations of unrelated violent conduct could prejudice a jury and undermine the fairness of the trial.

The Crown refused consent and argued that the court could not review the exercise of prosecutorial discretion absent evidence of abuse of process.

The court held that binding authority requires proof that the Crown exercised its discretion arbitrarily, capriciously, or for improper motive before judicial intervention is justified.

As no evidentiary foundation demonstrating abuse of process or a Charter breach was established, the application to dispense with prosecutorial consent was dismissed.

The accused pleaded guilty to assault with a weapon (cordless telephone) against his former intimate partner.

The Crown sought a custodial sentence of 120 days, citing the aggravating factors of domestic violence, prior assaults on the same victim, and breach of trust.

The defence sought an intermittent sentence of 30 days or house arrest of 60 days, emphasizing the guilty plea, pre-sentence custody, volunteer work, and community support.

The court imposed a custodial sentence of four months, finding that a conditional sentence was inconsistent with sentencing principles in domestic violence cases.

The court emphasized denunciation and deterrence as paramount objectives.

The accused was charged with aggravated assault contrary to section 268 of the Criminal Code following a hockey game in a non-contact senior men's league in Ottawa.

During the final 47 seconds of a game between the Pirates and Tiger-Cats, the accused delivered a deliberate blindside hit to the complainant's head, causing severe injuries including facial lacerations, missing teeth, and a concussion.

The court found that the accused intentionally delivered the hit in retaliation for a missed penalty call at the blue line moments earlier.

The court rejected the accused's claim that the contact was an unavoidable collision and found that the accused's actions fell so far outside the acceptable conduct in a non-contact league that consent could not be given.

The accused was convicted of aggravated assault.

The accused was charged with sexually assaulting the complainant after a night of drinking among friends where the complainant became severely intoxicated and ill.

The complainant testified that she lost consciousness intermittently and awoke to the accused engaging in sexual activity without her consent, repeatedly telling him to stop.

The court rejected the accused’s evidence due to numerous deliberate lies and inconsistencies, finding his testimony wholly unreliable.

The complainant’s evidence was accepted as credible and corroborated by medical evidence, witness testimony, and surrounding circumstances.

The court held that the complainant lacked the capacity to provide ongoing consent due to intoxication and illness, and that the accused took no reasonable steps to ascertain consent.

The defence of honest but mistaken belief in consent was found to have no air of reality.

During a criminal trial involving allegations of sexual assault, the Crown sought to qualify a police detective as an expert in the operation of Facebook features and Microsoft Word functions relevant to the creation of a document allegedly copied from a Facebook News Feed.

The defence challenged the scope and usefulness of the proposed expert evidence, arguing that the detective lacked sufficient expertise regarding Facebook’s technical coding in 2009 and could not conclusively authenticate the document.

Applying the criteria for admissibility of expert evidence from R. v. Mohan, the court found the proposed testimony relevant and necessary to assist the trier of fact in understanding technical aspects of copying, pasting, hyperlinks, and auto-correct features.

The court concluded the detective possessed specialized knowledge through training and investigative experience and that any limitations in his expertise affected weight rather than admissibility.

The detective was therefore qualified to provide expert opinion within the proposed areas.

The defendants, Aviva Canada Inc. and Pilot Insurance Company, brought summary judgment motions to dismiss two actions by the plaintiff arising from a motor vehicle accident.

The insurer denied coverage, alleging the plaintiff failed to notify them of a material change in risk (using a personal vehicle for a driving school) and made false statements about his claim.

The court dismissed the motions, finding that the statutory condition regarding change in risk did not apply to uninsured coverage.

Furthermore, the court held that genuine issues requiring a trial existed regarding whether the failure to notify was intentional and whether the plaintiff willfully made false statements, as these issues required credibility assessments best suited for a trial judge.

The two defendants, aged 18 at the time, were convicted of robbing a 15-year-old student of his cell phone at their high school.

The Crown sought 2 to 4 months in jail followed by 18 months probation, while the defence sought probation.

The court considered the defendants' youth, first-time offender status, and post-offence conduct.

Emphasizing specific deterrence and rehabilitation, the court sentenced both defendants to three years of probation with strict conditions, including restitution of $350 each, a 10-year weapons prohibition, and a DNA order.

The Crown appealed an acquittal on a charge of impaired operation of a motor vehicle by a drug under s. 253(1)(a) of the Criminal Code.

The appeal court found the trial judge failed to consider the cumulative effect of the evidence regarding whether the accused’s impairment was caused by drugs, including eyewitness evidence of impaired driving, expert evidence regarding the presence of drugs, and a statement to police.

The trial judge also failed to rule on the voluntariness and admissibility of the accused’s statement after a voir dire.

These errors constituted errors of law that materially affected the acquittal.

The acquittal was set aside and a new trial ordered.

Following a criminal trial for robbery arising from a school incident, identity was the only live issue.

The court considered eyewitness evidence from the complainant and a corroborating student witness, evidence from school officials, and the photo line-up evidence.

Applying the reasonable doubt standard and the framework in R v W (D), the court rejected the denial evidence and found the identification evidence reliable.

The court held that the Crown proved all elements of robbery beyond a reasonable doubt and convicted both defendants.