Jason Harley Gilbert

The accused brought a mid‑trial motion for a mistrial alleging a reasonable apprehension of bias arising from comments and findings made by the trial judge during a bail hearing conducted after the accused absconded during the trial.

The accused argued that the judge made adverse credibility findings and factual findings regarding emails sent to a witness in breach of bail conditions.

The court held that the comments made during the bail decision did not amount to credibility findings demonstrating bias and were based largely on accepting the accused’s own evidence.

The court further held that trial judges routinely make credibility determinations during interlocutory proceedings and that such findings do not require recusal.

Evidence and comments relating to the bail decision could not play any role in determining guilt at trial.

The motion for a mistrial based on reasonable apprehension of bias was therefore dismissed.

The Crown applied on a voir dire for a ruling that inculpatory statements made by the accused to two corporate investigators and a police officer were voluntary and admissible at trial for theft over $5,000.

The accused argued the statements were induced by promises that police would not be called if she confessed and that an oppressive atmosphere existed during questioning at her employer’s office.

The court applied the common law confessions rule and assessed whether threats, promises, inducements, oppression, lack of operating mind, or police trickery undermined voluntariness.

Rejecting the accused’s testimony as not credible, the court found no evidence of threats, inducements, or oppressive conditions.

The Crown proved beyond a reasonable doubt that the statements to both the employer representatives and the police officer were voluntary and admissible.

The young person was charged with armed robbery of a bank based on video surveillance and a palm print found on the exit door.

The Crown's case relied heavily on a fingerprint expert testifying for the first time, whose evidence was marred by late disclosure, documentary errors, and reliance on unfiled known prints.

The court rejected the expert's opinion as unreliable and denied the Crown's late application to call a verification officer.

Furthermore, the court found no evidence that the young person, who merely entered and left the bank with the actual robber, had the requisite knowledge or intent to be a party to the offence, nor was there reliable evidence a firearm was used.

The young person was acquitted.

A youth was charged with robbery while using a firearm following a bank robbery on December 29, 2010.

The Crown's case rested primarily on fingerprint evidence found on the interior exit door of the bank and eyewitness testimony.

The accused was not the actual robber but the second youth who entered and exited the bank with the robber.

The court found serious deficiencies in the expert fingerprint evidence, including failure to provide a proper expert report, disclosure violations, documentary errors, and use of prints from a different arrest date without disclosure.

The court also found insufficient evidence of the use of a firearm and no evidence of the accused's knowledge or participation in the robbery beyond mere presence.

The accused was acquitted of all charges.

The appellant appealed his convictions for breaching his bail recognizance and probation orders by indirectly communicating a threat to his former probation officer.

The appellant argued the trial judge misapprehended his evidence and erroneously based a finding of wilful blindness on a concession made in hindsight.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded the appellant had actual knowledge that the threat would inevitably be conveyed to its intended target.

The sentence appeal was also dismissed.

The Crown appealed the accused's acquittal on a charge of uttering a threat to cause bodily harm.

The trial judge had found that the accused's threat to 'assault' his former probation officer did not necessarily include bodily harm.

The Court of Appeal held that the trial judge erred by failing to consider the surrounding circumstances, which included the accused's violent history, mental instability, and anger towards the victim.

A reasonable person would conclude the threat was to cause bodily harm.

The acquittal was set aside, a conviction entered, and a concurrent sentence of 349 days was imposed.

The Crown appealed a sentence of two years' probation imposed on a young person convicted of assault causing bodily harm, which the sentencing judge designated a serious violent offence.

The young person, acting as the principal in a group assault, knocked the victim unconscious and continued to strike him, causing a broken jaw and concussion.

The Court of Appeal found the probationary term failed to reflect the proportionality principle under the Youth Criminal Justice Act.

The appeal was allowed, and a sentence of four months' open custody, two months' community supervision, and six months' probation was substituted.