Jamie Cecilia Klukach

The appellant appealed his conviction for first degree murder entered by a jury following a trial before Justice Bruce G. Thomas.

The appeal raised three grounds: (1) an error in jury selection involving the substitution of static triers on the second day of jury selection without statutory authority; (2) the trial judge's error in leaving section 231(6) of the Criminal Code (constructive first degree murder based on criminal harassment) as a basis for conviction when the evidence was insufficient; and (3) inadequate jury instructions on the elements of section 231(6).

The Court of Appeal dismissed the appeal, finding that while errors occurred, they caused no substantial wrong or miscarriage of justice given the overwhelming evidence supporting a conviction for planned and deliberate first degree murder.

The defendant brought an application four months after conviction and four days before sentencing to re-open the trial and/or declare a mistrial.

The application raised multiple grounds including ineffective counsel, abuse of process, apprehension of bias, constitutional challenges regarding freedom of expression and jury trial rights, and inadequate reasons for judgment.

The court applied the Palmer test for admissibility of fresh evidence after conviction and found most issues lacked merit.

However, regarding the failure to call a defence, the court determined it could not assess the application without hearing from the defendant and counsel, and without a proffer of the evidence sought to be adduced.

The court allowed the application to proceed by way of affidavit evidence to ensure no miscarriage of justice.

The appellant was convicted of first degree murder in the death of Diane Werendowicz, who was sexually assaulted and strangled in 1981.

The appellant's DNA matched semen found on the victim.

The case proceeded through four trials: the first resulted in conviction (later overturned on appeal), the second and third ended in hung juries, and the fourth resulted in conviction.

The Crown's key evidence included a 911 call traced to a phone booth near the appellant's workplace, voice identification evidence, and DNA evidence.

The appellant challenged the trial judge's jury instructions on the call tracing evidence, voice identification evidence, and other matters.

The Court of Appeal dismissed the appeal, finding the jury instructions adequate and fair.

The Crown appealed an acquittal of sexual assault charges.

The accused was charged with sexually assaulting his sister-in-law on two occasions without her consent.

The trial judge acquitted the accused, finding his testimony that the sexual activity was consensual to be credible.

The trial judge negatively assessed the complainant's credibility based on her post-assault behaviour, which included continued association with the accused and failure to flee or call for help.

The Court of Appeal found that the trial judge erred in law by relying on stereotypical views about how sexual assault victims should behave.

The court determined that this legal error was material to the verdict because the trial judge's belief in the accused's credibility was inextricably linked to her flawed assessment of the complainant's credibility.

The appeal was allowed and a new trial was ordered.

A reference from the Minister of Justice concerning convictions entered in 1987 for break and enter, assault causing bodily harm, and overcoming resistance by strangulation.

The case turned entirely on eyewitness identification evidence from the victim, which suffered from significant frailties including a procedurally flawed courtroom identification.

Fresh evidence revealed that the victim and a police officer involved in the identification procedure were in a personal relationship that was not disclosed to the defence.

The court found that fairness required disclosure of this relationship and that there was a reasonable possibility the non-disclosure impacted the trial outcome.

The convictions were quashed and a new trial ordered.

Two appellants were convicted following a jury trial for their roles in an armed robbery of a drug dealer's residence in Barrhaven.

During the robbery, one of the perpetrators shot and killed the resident.

The first appellant was convicted of first degree murder; the second appellant was convicted of second degree murder.

On appeal, the first appellant's conviction was upheld.

However, the second appellant's conviction was set aside and a new trial ordered due to errors in the trial judge's jury instructions regarding the mens rea requirement for party liability to murder under section 21(2) of the Criminal Code.

The appellant was convicted of impaired driving causing death and dangerous driving causing death after a head-on collision on Highway 17 that killed the other driver.

On appeal, the appellant challenged the admission of expert opinion evidence from a police accident reconstruction officer, arguing the evidence was tainted by bias and that the Crown failed to disclose draft reports.

The Court of Appeal upheld the conviction, finding that while there were concerns about the expert's independence, the trial judge properly circumscribed the scope of admissible evidence and that any disclosure violation did not impair the appellant's right to make full answer and defence.

The applicant sought bail pending appeal of his conviction for first degree murder in the killing of a victim on June 20, 1981.

The applicant had been tried four times for the offence: the first conviction was set aside on Charter grounds, the second and third trials resulted in hung juries, and the fourth trial resulted in conviction.

The applicant had been on bail for many years during the proceedings and had complied with all bail conditions.

The court applied the three-part test under s. 679(3) of the Criminal Code: (1) the appeal is not frivolous; (2) the applicant will surrender into custody; and (3) detention is not necessary in the public interest.

The court found all three criteria satisfied and granted bail pending appeal, increasing the recognizance to $750,000.

Current and former sex workers challenged three Criminal Code provisions prohibiting bawdy-houses, living on avails, and public communication for prostitution purposes.

The Court held the provisions deprived security of the person by materially increasing risks of violence and preventing safety-enhancing measures, and that the deprivations were not in accordance with fundamental justice due to gross disproportionality and overbreadth.

The Court affirmed that lower courts may revisit precedent when a new legal issue or significant evidentiary change is shown, and confirmed deference to trial findings on social and legislative facts absent palpable and overriding error.

Section 210 (as related to prostitution), section 212(1)(j), and section 213(1)(c) were declared unconstitutional.

Invalidity was suspended for one year to permit legislative response.

The appellant challenged the constitutionality of s. 243 of the Criminal Code, which prohibits concealing the dead body of a child whether it died before, during, or after birth, arguing the provision is impermissibly vague in its application to a child that died before birth, thereby infringing s. 7 of the Charter.

The Supreme Court unanimously dismissed the appeal, holding that s. 243 meets the minimum standard of precision required by the Charter when interpreted to apply only to a fetus that would likely have been born alive.

The Court adopted a likelihood standard from R. v. Berriman, finding the provision gives fair notice and sufficiently limits enforcement discretion.

The matter was remitted for a new trial.

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.