Joanne Capozzi

The Crown brought an application during a first-degree murder trial to admit the preliminary inquiry evidence of two unavailable witnesses under s. 715(1) of the Criminal Code.

One witness was too ill to testify, which the defence conceded.

The other witness had left Canada and was evading his subpoena.

The court found that the witness was absent from Canada and that it was not feasible to take his evidence via video link.

Balancing the probative value of the evidence against potential trial unfairness, the court admitted the preliminary inquiry evidence, noting the defence could lead evidence regarding the witness's credibility.

During a first-degree murder trial, the accused brought an application under s. 24(1) of the Charter to exclude the evidence of a Crown witness, arguing that the police's failure to properly record and preserve evidence from group meetings with witnesses breached his rights under ss. 7 and 11(d).

The court dismissed the application, finding that the police did not deliberately fail to make a record to avoid production, and that the imperfect note-taking and group interviews did not render the trial unfair given the extensive disclosure available to the defence for cross-examination.

During a trial for first degree murder, the Crown brought an application to admit several ante-mortem hearsay statements made by the deceased to his mother and cousin.

The statements detailed a history of animosity and fear of the accused.

The court applied the principled exception to the hearsay rule, assessing the threshold reliability of each statement.

The court admitted several statements that possessed sufficient circumstantial guarantees of trustworthiness, such as those made shortly after traumatic events or expressing present fear.

However, the court excluded other statements that were made under circumstances of suspicion or were inextricably intertwined with double hearsay.

The court also declined the defence's request to cross-examine the deceased's mother on the voir dire, finding that her preliminary inquiry transcripts were sufficient to assess threshold reliability and that her credibility was not so deficient as to rob the statements of all probative value.

The accused applied to exclude evidence seized during a search of his residence pursuant to a warrant obtained under the Controlled Drugs and Substances Act.

The warrant relied heavily on information from a confidential informant.

The court found the warrant invalid because the affiant failed to disclose the informant's monetary motivation, provided no details of past reliability, and relied on uncorroborated second-hand information to connect the residence to the drugs.

Applying the Grant framework, the court concluded that the Charter-infringing conduct was serious and the impact on the accused's rights was significant, warranting the exclusion of the evidence under s. 24(2) of the Charter.

The offender was convicted of manslaughter as a party to a shooting death committed by a co-accused.

The Crown sought a sentence of six to eight years, arguing the four-year mandatory minimum for manslaughter with a firearm applied.

The court found the offender did not know the co-accused had a gun and held that the mandatory minimum does not apply in such circumstances.

Weighing the offender's lack of prior record, strong prospects for rehabilitation, and lesser degree of responsibility against the gravity of the offence, the court imposed a sentence of four years (credited as time served) followed by two years' probation.