J. Kopman

Joaquim Batista, a surety, sought to set aside a $5000 bail recognizance forfeiture order made in his absence due to a miscommunication with the Crown.

The Crown argued the court was functus officio and there was no right of appeal.

The court held that the functus officio doctrine must be applied flexibly where no right of appeal exists, especially when a party was denied the opportunity to be heard.

The forfeiture order was set aside, and the Crown was permitted to renew its application.

This decision addresses jury instructions on modes of participation for two accused, Richard Ireland and Trayon Johnson, in a joint jury trial for second-degree murder and attempted murder.

The Crown's application for Ireland as a principal (s. 21(1)(a) Criminal Code) and Johnson as an aider (s. 21(1)(b) Criminal Code) was granted.

The Crown's application for Johnson as a co-principal (s. 21(2) Criminal Code) was dismissed, as was Johnson's request for the jury to be instructed only on s. 21(2) and thus preclude a second-degree murder verdict for him.

The court found an air of reality for Johnson's conviction as an aider but not as a co-principal for second-degree murder.

Trayon Johnson, charged with second-degree murder and attempted murder, applied to introduce his exculpatory police statement made on October 20, 2017, under the *Edgar* exception.

The court granted the motion, finding that despite instances of dishonesty and manipulation during the 12-hour interview, a contextual analysis left doubt regarding the spontaneity of the statement.

In such cases, the statement should be admitted for the jury to assess its weight and the accused's credibility, not for the truth of its contents.

The jury will be instructed on how to use the statement to assess Johnson's reaction and credibility when confronted with the allegations.

Trayon Johnson, charged with second-degree murder and attempted murder, sought an order under s. 638(1)(b) of the Criminal Code to challenge prospective jurors for cause.

He proposed augmenting the traditional *Parks* questions with multiple-choice options to address subconscious racial bias against men of African ancestry.

The court acknowledged the existence of racial stereotypes and unconscious bias, finding that appropriately-constructed multiple-choice questions could be more effective than standard "yes/no" questions in identifying such biases.

The proposed multiple-choice questions were approved to ensure an impartial jury.

The applicant, Adrian Williams, sought bail after being charged with first-degree murder and attempted murder.

The application was heard during the COVID-19 pandemic, with expert medical evidence presented regarding the risks of the virus in correctional facilities.

The court considered the secondary and tertiary grounds for detention under the Criminal Code, including the applicant's criminal record, the gravity of the offences, the strong Crown case, and the public health implications of the pandemic.

Despite the public health concerns, the court found that the applicant failed to demonstrate that his detention was not necessary for public safety and to maintain confidence in the administration of justice, given his history of breaching court orders and the extreme violence of the alleged crimes.

Bail was denied.

The Crown sought a ruling that amendments to sections 535 and 536 of the Criminal Code, which came into force on September 19, 2019, apply retrospectively to eliminate the availability of preliminary inquiries for charges attracting a maximum punishment of less than 14 years imprisonment.

The accused argued that the amendments affected their substantive statutory right to a preliminary inquiry, which had vested upon their election, and that the amendments altered the jurisdiction of provincial courts.

The court held that the amendments are purely procedural in nature and do not affect substantive rights.

The court found no vested right in procedure and determined that procedural legislation is presumed to apply immediately to pending cases.

The court granted the Crown's application, vacating the preliminary inquiry dates and remanding the matters to the Superior Court of Justice, while preserving the accused's right to re-elect trial in the Ontario Court of Justice.