Jason Michael Neubauer

The court considered whether section 278.92 of the Criminal Code prohibits defence counsel from putting the contents of a private record to a complainant during cross-examination without first obtaining a court order.

The accused was charged with 19 offences including sexual assault with a weapon, assault, uttering threats, criminal harassment, unlawful confinement, and public mischief.

Defence counsel sought to cross-examine the complainant regarding statements she allegedly made to a health care provider that appeared inconsistent with her trial testimony regarding the timing of alleged incidents.

The Crown objected, arguing that section 278.92 required a court order before any contents of the private record could be put to the complainant.

The court held that an order under section 278.92 is required before defence counsel may put to a witness the contents of a record in the possession of the defendant in which the complainant had a reasonable expectation of privacy.

The accused brought an application under s. 278.93 (formerly s. 276.1) for a hearing under s. 278.94 (formerly s. 276.2) to determine whether evidence of the complainant's sexual activity other than that forming the subject matter of the sexual assault charges would be admissible under s. 276(2) of the Criminal Code.

The central issue was whether the accused's application record must be provided to the complainant before the s. 278.94 hearing.

The court held that the complainant is entitled to receive the application record sufficiently in advance of the hearing to allow her to prepare and make meaningful submissions.

Marc Auguste pleaded guilty to dangerous driving causing bodily harm after failing to stop at a stop sign, resulting in severe injuries to the victim.

The court considered aggravating factors such as the extent of injuries, speeding, and the nature of the vehicle, alongside mitigating factors including a guilty plea, lack of criminal record, remorse, and pro-social lifestyle.

The Crown sought a four-month jail sentence, while the defence requested a suspended sentence with probation and a one-year driving prohibition.

The court imposed a suspended sentence with three years' probation, 240 hours of community service, and a six-month curfew, declining a driving prohibition to allow the offender to maintain employment.

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.

The Crown brought an application to admit the videotaped police statement of an unavailable witness under the principled exception to the hearsay rule in a first-degree murder re-trial.

The witness, who had been subpoenaed, failed to appear.

The court found that while the statement met the necessity criterion and threshold reliability through corroborating evidence, its admission would severely impact trial fairness.

The statement lacked spontaneity, having been guided by police theories, and the inability of the defence to cross-examine the witness rendered the statement's prejudicial effect disproportionate to its probative value.

The application was dismissed.

The Crown sought to admit hearsay statements of a deported witness, Omar Ahmed, and his prior transcript testimony in a re-trial for first-degree murder.

The Respondent objected on grounds of necessity and reliability.

The court found that while necessity was met due to Ahmed's deportation, threshold reliability was not established due to his criminal background, inconsistencies in prior testimony, and the Respondent's lack of full opportunity to cross-examine him in a fair trial setting.

The court also exercised its residual discretion to exclude the evidence to protect the Respondent's constitutional right to a fair trial, given the prior conviction was overturned due to a miscarriage of justice.

The applicant, charged with first-degree murder, sought to exclude 104 private communications intercepted under six wiretap authorizations, arguing violations of section 8 and 24(2) of the Charter.

The applicant alleged that the affiant failed to make full, frank, and fair disclosure in the Information to Obtain (ITO) for the first authorization, leading to invalidity of all subsequent authorizations.

The court reviewed the ITO for probable cause and investigative necessity, finding that despite some errors and omissions by the affiant, they were not intentional or grossly negligent and did not seriously distort the assessment of witness credibility.

The court concluded that the issuing justice had a sufficient basis to grant the authorizations, as probable cause and investigative necessity were established.

The motion to exclude the wiretap evidence was dismissed.

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.

The accused, jointly charged with first degree murder in the death of his wife, brought a motion for a directed verdict of acquittal.

The Crown's theory was that the accused set the stage for his co-accused, with whom he was having an affair, to carry out the killing.

The court reviewed the circumstantial evidence regarding motive, planning and deliberation, and post-offence conduct.

The court concluded that the cumulative effect of the evidence was capable of supporting the inferences sought by the Crown and dismissed the motion.

The defence counsel for Gurpreet Ronald sought to prohibit her former counsel, Mr. Bruce Engel, from testifying for the Crown, asserting solicitor-client privilege.

The court examined the validity of two waivers of privilege: a verbal waiver given on August 6, 2014, and a written waiver given on August 21, 2014, after consultation with independent counsel.

The court found the verbal waiver invalid due to the lack of independent legal advice but upheld the written waiver as valid and irrevocable, as the information had already been disclosed.

The court also clarified the scope of solicitor-client privilege, ruling that it covered communications between Ms. Ronald and Mr. Engel but not the content of Mr. Engel's subsequent conversation with co-accused Mr. Gill.

The application to prohibit testimony was dismissed.

The court issued two rulings during a murder trial.

First, it rejected the defence's argument that if one co-accused was acquitted, the other must also be acquitted based on conspiracy law, clarifying that the old common law rule for conspirators is no longer valid and, in any event, the accused were charged with murder, not conspiracy.

Second, the court denied the request to leave second-degree murder as an included offence to the jury, finding no air of reality in the evidence to support a conclusion of intentional but spontaneous killing, given the pre-meditated actions of the assailant.

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.

The accused, Gurpreet Ronald and Bhupinderpal Gill, charged with first-degree murder, sought to edit their voluntary exculpatory statements given to police.

The Crown alleged the accused acted in concert to kill the victim.

The court reviewed legal principles for editing voluntary statements, emphasizing the balance between relevance, prejudicial effect, and the right to a fair trial in a joint proceeding.

The judge ruled that segments where the officer commented on the accused's credibility, advised them to tell the truth, or expressed opinions on co-accused's guilt should be excised as they are not probative and are prejudicial.

The accused sought an order permitting challenges for cause of prospective jurors based on race, religion, pre-trial publicity, marital infidelity, and employment bias.

The court permitted challenges for cause on the grounds of race, religion (by agreement), and pre-trial publicity, finding a realistic potential for bias that might prevent jurors from being impartial despite judicial instructions.

However, the court denied challenges for cause based on marital infidelity and employment bias, as the applicants failed to demonstrate widespread community bias or that potential jurors would be incapable of setting aside such biases.

The accused, jointly charged with first-degree murder, brought an application to sit with their counsel at trial rather than in the prisoner's dock.

The court reviewed the divided judicial approaches to this issue, including the Kaufman Commission's recommendation and the Ontario Court of Appeal's guidance in *R. v. Lalande*.

Despite the accused presenting no particular security risks and being in custody, the application was dismissed.

The court found that practical courtroom limitations prevented the accused from being adequately visible to the jury and witnesses from the counsel table, and that any potential stigma associated with the prisoner's dock could be addressed through jury instructions.

The accused, Gurpreet Ronald, applied for severance of her charges from those of her co-accused, Bhupinderpal Gill, in a first-degree murder trial.

The Crown alleged a conspiracy between the co-accused to kill Mr. Gill's wife.

Ms. Ronald sought severance due to the potential admission of evidence regarding her prior discreditable conduct, which Mr. Gill intended to use to raise reasonable doubt about his involvement.

The court dismissed the severance application, finding that the potential prejudice from the prior conduct evidence was low given the strong direct and circumstantial evidence linking Ms. Ronald to the death.

The court also determined that any potential prejudice could be mitigated by appropriate limiting jury instructions, affirming the presumption that juries follow judicial directions.

In a first-degree murder trial, the Crown sought to admit hearsay statements of the deceased and evidence of prior discreditable conduct of the accused.

The court applied the principled approach to hearsay and the test for prior discreditable conduct, assessing relevance, necessity, reliability, and prejudicial effect.

Certain hearsay statements regarding the deceased's state of mind and marital unhappiness were admitted, as were some instances of the male accused's controlling behaviour.

However, vague allegations of physical abuse and a statement about visiting family were deemed unreliable and inadmissible.

The applicant, Gurpreet Ronald, sought a finding that a General Warrant issued under s. 487.01 of the Criminal Code breached s. 8 of the Canadian Charter of Rights and Freedoms, and that evidence obtained from it should be excluded under s. 24(2) of the Charter.

The motion alleged material non-disclosure and misleading information in the Information to Obtain (ITO) the warrant, specifically regarding attempts to obtain DNA and the seizure of garbage.

The court found no material non-disclosure or misinformation, concluding that the information before the issuing justice was sufficient to establish reasonable and probable grounds for the warrant.

Consequently, the court found no breach of s. 8 of the Charter and upheld the warrant's validity.