Jeff Hershberg

The applicant, a young person charged with murder, sought to quash a subpoena compelling him to testify at the preliminary hearing of his separately charged adult co-accused.

The applicant argued the Crown's predominant purpose was to obtain incriminating evidence against him and force him to reveal his defence.

The court found the Crown established the applicant likely had material evidence to give.

Applying the Branch test, the court concluded the applicant failed to demonstrate the Crown's predominant purpose was improper or that there was a real and substantial risk of prejudice to his fair trial rights, given the availability of derivative use immunity.

The application to quash the subpoena was dismissed.

The accused was charged with possession of proceeds of crime over $5,000, possession of cocaine and cannabis for the purpose of trafficking, possession of crack cocaine for the purpose of trafficking, and breach of a recognizance.

Police executed a search warrant at a residence co-owned by the accused and discovered drugs, drug paraphernalia, cash, and packaging materials.

The principal issue at trial was whether the accused had knowledge and control of the drugs found in the residence.

The court held that the circumstantial evidence did not establish beyond a reasonable doubt that the accused exercised control over the drugs or knew of their presence, particularly given evidence that other individuals resided in or frequented the home and one individual occupied the bedroom where drugs were found.

The accused was acquitted on all counts.

The offender was convicted by a jury of importing 406 grams of cocaine after arriving at Pearson International Airport from Jamaica.

At sentencing, the defence argued for mitigation based on alleged compulsion falling short of duress and repeated strip searches conducted by law enforcement.

The court rejected the claim of compulsion, finding the offender not credible and concluding she participated willingly for personal gain.

However, the court found that a second strip search conducted by police after arrest violated s. 8 of the Charter because it was carried out as a matter of routine policy without reasonable grounds.

Applying sentencing principles and the range established in appellate jurisprudence, the court reduced the otherwise fit sentence to reflect the police misconduct.

During a criminal trial, the Crown sought to admit statements allegedly made by the accused while detained at an airport under the Customs Act after officers suspected drug smuggling.

The defence argued the statements were involuntary and obtained in oppressive circumstances.

The court held the Crown failed to prove voluntariness beyond a reasonable doubt due to the absence of reliable recordings, incomplete officer notes, and interrogation conditions including prolonged detention, lack of sleep, and uncomfortable conditions.

These factors undermined the reliability and context of the alleged admissions.

The impugned statements were ruled inadmissible.

The three accused were charged with 32 armed robberies of gas stations and convenience stores.

Following their arrest after a foot pursuit, they were held for several hours before giving videotaped confessions.

The accused sought a stay of proceedings alleging police brutality, and challenged the admissibility of their statements and physical evidence seized.

The court dismissed the stay application, finding no evidence of police brutality, and upheld the lawfulness of the arrests and search warrants.

However, the court ruled the statements inadmissible because the Crown failed to prove voluntariness beyond a reasonable doubt, largely due to the police's failure to video-record the critical 'pre-interviews' where the accused allegedly waived their right to counsel and agreed to confess.

Following conviction for possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code, the sentencing court considered constitutional challenges to the mandatory minimum in s. 95(2)(a)(i).

The court held that the three-year minimum was grossly disproportionate on the facts and therefore violated s. 12, and further held the hybrid structure created arbitrariness contrary to s. 7 because of the one-year summary maximum and three-year indictable floor.

The infringements were not saved under s. 1, and the proper remedy was a declaration of invalidity under s. 52 rather than a constitutional exemption or mandamus.

Applying ordinary sentencing principles once the minimum was removed, the court imposed a one-year sentence with credits, resulting in five months to be served conditionally in the community.

The Crown appealed the acquittals of the respondents, arguing the trial judge erred in finding a breach of section 8 of the Charter and excluding evidence under section 24(2).

The trial judge had excised misleading information from the Information to Obtain (ITO) and concluded the remaining facts could not support the search warrant.

The Court of Appeal allowed the appeal, finding that even after removing the misstatements, there remained sufficient reliable evidence connecting the respondents and the searched premises to the robbery to justify issuing the warrant.

A new trial was ordered.