Jennifer A. Y. Trehearne

During a joint trial, counsel for one of the co-accused sought directions on the appropriate timing to introduce propensity or bad character evidence against the other co-accused through cross-examination of a Crown witness (a 'Pollock & Morrisson' application).

The court ruled that to maintain full answer and defence and procedural fairness, notice of such an application must be provided at the conclusion of the Crown's examination-in-chief, prior to the commencement of cross-examination by the co-accused's counsel.

The Crown brought an application to introduce evidence of prior discreditable conduct against the co-accused in a first-degree murder trial.

The Crown sought to admit evidence of the co-accused's prior criminal collaboration, access to firearms, and use of an animal incinerator to establish their relationship, motive, and the actus reus of the offence.

The court applied the test for admitting discreditable conduct, balancing probative value against moral and reasoning prejudice.

The court granted the application in part, finding that certain evidence was highly probative to understanding the co-accused's relationship and rebutting anticipated defences, while excluding other evidence that posed an insurmountable risk of propensity reasoning.

The applicant, charged with first-degree murder, brought an omnibus application to exclude evidence under the Charter.

He challenged the validity and execution of a search warrant at his residence, the lawfulness and manner of his arrest, and the admissibility of a photo line-up identification.

The court found that the Information to Obtain the search warrant contained sufficient grounds and that the dynamic entry was justified by the potential presence of a firearm.

The court also held that the police had reasonable grounds for the arrest and did not use excessive force.

Finally, the court ruled that the photo line-up substantially complied with best practices and any flaws went to weight rather than admissibility.

The application was dismissed.

A media coalition applied for an order allowing the publication of certain pre-trial motions in a high-profile first-degree murder case, arguing that the statutory publication ban under s. 648(1) of the Criminal Code should not apply to all pre-trial motions.

The Crown and the accused opposed the application, arguing that s. 648(1) provides a blanket statutory ban on all reporting of any information concerning pre-trial applications brought before the designated trial judge.

The court dismissed the media's application, holding that the statutory ban under s. 648(1) is mandatory and applies to all pre-trial motions adjudicated by the trial judge, whether litigated before or after a jury is selected.

The applicant brought a pre-trial motion to exclude both sworn and unsworn jurors from the courtroom during the 'rotating triers' challenge for cause process.

The Crown and co-accused supported the application.

The court considered conflicting jurisprudence on whether the 2008 amendments to section 640 of the Criminal Code ousted the court's inherent jurisdiction to exclude jurors absent a specific application for 'static triers' under section 640(2.1).

The court concluded that the legislative amendments did not limit its inherent jurisdiction to control its process and ensure an impartial jury under section 11(d) of the Charter.

The application was granted, and all jurors were ordered excluded during the challenge process.

The accused applied under s. 599(1) of the Criminal Code for a change of venue for a first‑degree murder trial, arguing that extensive pre‑trial publicity and community response in Hamilton had irreparably tainted the local jury pool.

The Crown and the co‑accused opposed the motion, submitting that the presumption favouring trial in the territorial jurisdiction of the alleged offence had not been displaced and that standard jury selection safeguards would ensure fairness.

The court reviewed the nature, extent, and timing of media coverage, including internet and social media discussion, and found that most reporting was factual and not highly prejudicial.

It held that the applicant failed to demonstrate a fair and reasonable probability of prejudice that could not be addressed through the jury selection process.

The motion for a change of venue was dismissed.

The defendant was charged with possession of marijuana for the purpose of trafficking contrary to s.5(3)(a.1) of the Controlled Drugs and Substances Act and possession of proceeds of crime contrary to s.354(1)(a) of the Criminal Code.

Police executed a search warrant at a residential address that was divided into two units without obtaining a separate warrant for the basement apartment.

The Crown conceded a breach of s.8 of the Charter.

The court applied the three-part test from R. v. Grant to determine whether evidence should be excluded under s.24(2).

The court found that the seriousness of the breach and impact on the accused's Charter-protected privacy interests favoured exclusion, despite society's interest in adjudication on the merits.

The evidence was excluded and the charges were dismissed.

The defendants were charged with production of marijuana and possession of marijuana for the purpose of trafficking following a search warrant executed at their residence.

The court found that the search warrant could not have been reasonably granted based on the information before the issuing justice.

The affiant's investigation was characterized by lack of diligence, selective presentation of evidence, and unreliable conclusions.

The court determined that the warrant violated section 8 of the Charter and excluded the evidence pursuant to section 24(2) using the three-part test from R. v. Grant.

Both defendants were acquitted.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in assessing credibility and resolving inconsistencies in the complainant's evidence.

The Court of Appeal found no error in the trial judge's application of the W.D. formula or her reasons for accepting the complainant's evidence over the appellant's.

The appeal was dismissed.

The appellant appealed his sentence.

The Court of Appeal allowed the appeal and reduced the sentence to time served based solely on fresh evidence.

The fresh evidence demonstrated that the appellant provided difficult and important testimony in a murder case and experienced difficult circumstances during his incarceration, including being in protective custody for twenty-three and a half hours per day.

The appellant appealed her sentence for conspiracy to rob her employer.

She argued the sentencing judge erred by considering evidence that she had previously provided information to her boyfriend enabling him to commit a serious robbery against the same victim.

The Court of Appeal dismissed the appeal, finding that the earlier events were part of the circumstances of the conspiracy under section 725(1)(c) of the Criminal Code, and the sentence was not manifestly unreasonable.

The appellant challenged convictions for sexual assault and unlawful confinement arising from a jury trial involving a co-accused who was acquitted.

The Court of Appeal held that, although it would have been preferable not to exhort the jury when the trial judge did, the instruction created no reasonable possibility of coercion or interference with free deliberation.

The court further held that the verdicts were not inconsistent because the jury could reasonably have had a doubt about the co-accused while accepting the complainant’s evidence concerning the appellant’s second act of intercourse and the related confinement.

The court also rejected the challenge to the recent complaint instruction, finding that, read in context, it properly addressed the defence attack on credibility and did not invite improper use of prior consistent statements.

The appellant was convicted by a jury of selling imported liquor, smuggling spirits, possession of property obtained by crime, and trafficking in cocaine following an undercover investigation.

He appealed his convictions and sentence, arguing the trial judge erred by discharging a juror for internal strife, giving a Browne v. Dunn instruction, excluding him from an in camera stay proceeding, failing to properly instruct on reasonable doubt, and failing to leave an 'agent for the purchaser' defence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly exercised her discretion under s. 644 of the Criminal Code to discharge the juror and made no reversible errors in her instructions or procedural rulings.

The sentence appeal was also dismissed, as the 12-month custodial sentence was fit for the offences.

The young person appealed the decision of the application judge refusing a transfer to Youth Court pursuant to s. 16(9) of the Young Offenders Act.

The application judge found that the young person constituted a danger to the public based on a risk assessment, personal history, and involvement in a serious offence.

The Court of Appeal agreed with the application judge's evaluation and dismissed the appeal.

The appellant appealed his convictions on the ground that the trial judge failed to properly consider whether the Crown had disproved unconscious influence among the three complainants when admitting similar fact evidence.

The Court of Appeal found that the trial judge properly addressed the potential effect of contact on the probative value of the evidence and concluded that the testimony was not tainted.

The appeal was dismissed.

The appellant was convicted of second degree murder following his third trial for the death of the victim.

On appeal, he argued that the trial judge erred in admitting a surreptitiously recorded conversation between himself and the victim, claiming it was conscriptive evidence that should have been excluded under s. 24(2) of the Charter.

He also challenged the trial judge's jury instructions regarding manslaughter, false alibi evidence, and the likely time of death.

The Court of Appeal dismissed the appeal, finding that the recorded conversation was non-conscriptive and properly admitted, and that the jury instructions did not result in a miscarriage of justice.