Jay Herbert

The accused brought a defence motion seeking to exclude proposed Crown evidence relating to a necklace fragment and a mark on a carport floor at a property where the accused had previously worked.

The Crown argued the evidence could support an inference connecting the homicide victim to the property and thereby implicate the accused.

The court held that there was no evidentiary foundation linking the necklace fragment or the unidentified mark to the victim.

Without proof connecting the items to the victim or the alleged crime scene, the evidence lacked relevance and probative value.

The court further held that allowing the jury to speculate about ownership of the necklace or the nature of the mark would be unfairly prejudicial to the accused.

The proposed evidence was therefore excluded.

During a jury trial for homicide, the defence brought a motion for a mistrial after the Crown’s opening address referenced conduct allegedly prohibited by a prior ruling on discreditable conduct evidence.

The defence argued that references to the disposal and sale of the deceased’s clothing improperly introduced prejudicial material.

The court held that the earlier ruling primarily addressed illicit drug use and trafficking evidence, and that the Crown’s reference to the clothing described post‑disappearance conduct that could reasonably be interpreted in different ways by the jury.

The court found the opening address was not inflammatory and did not breach the prior evidentiary ruling.

The defence motion for a mistrial was dismissed.

Following marital breakdown, the parties disputed property division relating to a gravel pit business and jointly owned property.

The respondent relied on a handwritten document signed by the applicant purporting to relinquish her interest in the business.

The court found the document invalid due to duress, lack of disclosure, and absence of independent legal advice.

The court determined that the parties operated the business as equal partners and assessed assets and debts primarily as of the separation date.

After valuing the remaining assets, liabilities, and credit card debts, the court ordered the respondent to pay equalization to the applicant and declined to make findings regarding alleged fraudulent transfers to a third party.

The Crown brought a pre-trial motion seeking admission of discreditable conduct evidence in a murder prosecution involving allegations that the accused killed and dismembered his partner.

The Crown argued that various incidents involving drug activity, relationship conflict, and theft of tools were necessary to provide narrative context, establish motive, and demonstrate access to tools capable of dismemberment.

The court applied the governing principles for admission of discreditable conduct evidence, including the balancing of probative value against prejudicial effect.

The court admitted evidence from one witness concerning the accused’s theft and pawning of a chainsaw, finding it relevant to access to tools and disposal methods potentially linked to the alleged dismemberment.

Evidence from other witnesses relating primarily to drug use, drug sales, and minor incidents of conflict was excluded as irrelevant to the issues of identity, motive, or the alleged offences and as posing significant risk of moral and reasoning prejudice.

The Crown applied to introduce several pre-death statements made by the deceased victim in a homicide trial.

The statements were sought to be admitted for their truth, as part of the narrative, or to demonstrate the deceased's state of mind.

The court applied the principled approach to hearsay, assessing the necessity and reliability of each statement.

Necessity was established due to the declarant's death.

The court admitted statements that were specific, reliable, and relevant to the deceased's state of mind, while excluding others that lacked detail, were too remote in time, or carried prejudicial effects outweighing their probative value.

The accused applied to introduce evidence of three alleged alternate suspects in a homicide trial, including an unidentified stalker, an acquaintance from Alcoholics Anonymous, and a contractor connected to a property where the victim’s remains were found.

The court reviewed the governing principles for third‑party suspect evidence, requiring a sufficient evidentiary nexus between the proposed suspect and the crime and an “air of reality” capable of supporting a reasonable doubt.

After examining the proffered evidence, the court concluded that none of the proposed suspects had a demonstrable connection to the homicide, motive, or opportunity sufficient to meet the admissibility threshold.

The proposed evidence would invite speculation and risk sending the jury on a “wild goose chase.” The application to introduce alternate suspect evidence was therefore dismissed.

The accused applied for a bail review under s. 523 of the Criminal Code seeking release from custody on charges of second degree murder and committing an indignity to a human body.

The defence argued that 19 new Centre of Forensic Sciences reports showing no DNA linking the accused to the offence constituted a material change in circumstances since the original bail hearing.

The court held that the absence of DNA evidence had already been recognized in the original decision and therefore did not amount to a material change.

The proposed release plan relied on the same sureties previously rejected and did not address prior concerns about their ability to control the accused.

The application for release was dismissed.

In a pre-trial motion during a murder prosecution, the Crown sought to introduce intercepted private communications obtained under a Part VI authorization.

The defence argued the intercepts were prejudicial, lacked probative value, and included privileged solicitor-client communications.

The court held that most of the intercepted calls were admissible as relevant to issues including motive, animus, identity of the perpetrator, and consciousness of guilt.

The court found solicitor-client privilege had been waived where the accused voluntarily disclosed legal advice to third parties.

Some intercepts relating to propensity to violence were deferred pending whether the accused placed his character in issue or raised a third-party suspect defence.

In a murder prosecution, the Crown brought a motion seeking permission to introduce several lawfully intercepted private telephone communications under a Part VI authorization.

The defence argued that the intercepts were prejudicial, lacked probative value, and included privileged discussions regarding legal advice.

The court held that most of the intercepts were relevant to issues such as motive, animus, identity, consciousness of guilt, and the narrative of the relationship between the accused and the deceased, and that their probative value outweighed any prejudicial effect.

Certain intercepts relating to potential propensity evidence were deferred pending whether the accused placed character in issue or advanced a third‑party suspect theory.

One intercept was ruled inadmissible because the Crown sought to use it for a purpose linked to a statement previously ruled inadmissible.

In a pre-trial motion during a murder prosecution, the Crown sought to tender autopsy photographs and other images of the deceased, including graphic photographs of dismembered body parts.

The defence admitted the cause of death, the dismemberment of the body, and the absence of any dispute about those facts, arguing that the sole issue for trial was the identity of the perpetrator.

The court held that the photographs had minimal probative value because the relevant facts were conceded and manslaughter was not being advanced as an available verdict.

Given the graphic and inflammatory nature of the images, the prejudice to the accused's right to a fair trial outweighed any speculative probative value.

The court excluded the autopsy and dismemberment photographs but permitted a diagram from the pathologist and a benign photograph of the deceased taken during her lifetime.

The accused brought a pre-trial motion to quash an authorization to intercept private communications and related warrants, alleging that the police misled the issuing judge and thereby violated s. 8 of the Charter.

The defence argued that the supporting affidavit omitted numerous forensic reports and inaccurately stated that a blood sample on a saw was too small for analysis, amounting to fraudulent misrepresentation and warranting exclusion of derivative evidence under s. 24(2).

The court found that the affidavit contained an error but held it did not undermine the validity of the authorization.

Even after removing the inaccurate statement, the remaining investigative information provided sufficient grounds for the issuing judge to grant the authorization.

The motion to quash the authorization and related warrants was dismissed.

The accused brought a motion seeking leave to cross-examine the affiant of a wiretap authorization.

The accused argued that the affidavit contained misleading information regarding blood found on a saw.

The court dismissed the motion, finding that cross-examination was unnecessary because the missing forensic information was already apparent on the record before the court.

The court noted that the affiant had relied on an investigative meeting and there was no suggestion of fabricated evidence.

In a murder prosecution, the Crown sought to admit a six‑hour police interview as a voluntary statement.

The accused repeatedly invoked legal advice not to answer questions and asked numerous times to speak with counsel, while police continued questioning.

The accused had been advised of the murder charge but was not informed of an additional charge relating to offering an indignity to human remains before consulting counsel, and he was not given another opportunity to consult counsel after learning of the second charge.

The court held that the failure to promptly advise the accused of all charges and to allow renewed access to counsel constituted breaches of ss. 10(a) and 10(b) of the Charter.

The statement was found not proven voluntary beyond a reasonable doubt and was excluded under s. 24(2).

The accused brought a motion seeking permission to challenge prospective jurors for cause based on alleged partiality arising from pre‑trial publicity and the wording of a charge alleging indignity to a human body.

The defence argued that media coverage referencing dismemberment and concealment of remains created a risk of bias among jurors.

The court held that ordinary media reporting of the allegations, without exaggeration or speculation about guilt, did not establish a foundation for a challenge for cause.

Relying on appellate authority distinguishing between mere publicity and prejudicial reporting, the court found that standard jury instructions would adequately address potential bias.

The application was dismissed.

The accused brought an O’Connor application seeking production of third party records held by a child protection agency relating to prior family proceedings involving the accused, the deceased, and their child.

The defence argued the records were likely relevant because the Crown intended to lead evidence portraying the accused as violent toward the deceased, while the records might demonstrate the opposite and assist the defence in responding to motive allegations in a murder prosecution.

The court found the likely relevance threshold satisfied and ordered production of the agency’s records after reviewing them.

The court held that the records could assist the accused in making full answer and defence.

The records were ordered disclosed to the defence only, excluding specified children’s aid society files and privileged documents, and the Crown was not entitled to receive copies.

On a pre‑trial motion, the court was asked to determine whether the contents of a sealed envelope seized from the accused at the time of arrest were protected by solicitor‑client privilege.

The envelope was addressed to defence counsel but contained a small notebook recording events in the accused’s life.

The court held the writings were not communications to a lawyer and therefore did not attract solicitor‑client privilege.

As a result, the materials were not protected from disclosure and could be shared with both parties.

In a prosecution for second degree murder and offering an indignity to a dead body, the Crown sought to remove defence counsel due to an alleged conflict of interest arising from prior representation of a Crown witness by one of the defence lawyers.

The defence requested directions permitting counsel to continue with scheduled pre‑trial motions and proposed safeguards to protect former client confidences.

The court held that no present conflict existed for the purpose of pre‑trial motions because none involved the former client, though the lawyer could not act at the jury trial if the witness became a third‑party suspect.

The court permitted the defence lawyers to conduct the pre‑trial motions, except any motion concerning the former client, and ordered confidentiality safeguards including off‑site storage of the prior client’s file.