John M. Rosen

In a criminal trial for wilfully promoting hatred, the Crown sought to introduce various blog posts and internet articles as "proposed motive evidence" to demonstrate the accused's animus towards gay people.

The court dismissed the Crown's application, finding that the proposed evidence was not capable of demonstrating the intense and extreme hatred required for motive.

The court ruled that the prejudicial effect of admitting such evidence, which risked distracting the jury with debates over the accused's political and religious views rather than the elements of the offence, significantly outweighed its limited probative value.

Two brothers were convicted of second degree murder in the shooting death of a gang member.

The Crown's theory was that the brothers acted pursuant to a joint venture to hunt down and kill the victim.

One brother testified he was the shooter and raised defences of self-defence and provocation; the other testified he had no involvement in the killing.

The trial judge's jury instructions improperly conflated the two accused into a single entity by repeatedly using the phrase "John and/or Mato" when describing elements of the offence and defences, failing to distinguish between liability as a perpetrator and liability as an aider or abettor, and assigning the shooter's defences to the non-shooter.

The Court of Appeal allowed the appeal and ordered a new trial, finding the cumulative errors created a significant risk that the jury would approach the liability of the brothers jointly rather than separately.

A 19-year-old first-time offender with no criminal record pleaded guilty to discharging a firearm with intent to endanger life contrary to s. 244(1) of the Criminal Code.

The offender arrived at a confrontation armed with a loaded handgun and fired at a group of men near a vehicle.

He was shot in the arm during the exchange of gunfire.

His bullets struck no one, though innocent bystanders in nearby vehicles were endangered.

The offender subsequently passed the firearm to an associate who fired additional shots.

The court imposed a sentence of five years and six months in custody, with enhanced presentence custody credit of one year to account for a jailhouse beating and gunshot wound suffered while in custody.

During a trial for first-degree murder arising from a home invasion and robbery, the Crown brought a KGB application to admit the prior inconsistent statement of a co-perpetrator for the truth of its contents.

The co-perpetrator had confessed to undercover police officers during a 'Mr. Big' operation but recanted parts of his confession at trial.

The court found that while the statement lacked substantive reliability, it met the test for threshold reliability based on procedural reliability, as there were adequate substitutes for testing truth and accuracy, including cross-examination and the use of a truth verification strategy by the undercover officers.

The application was granted and the statement was admitted.

The appellant appealed his conviction on a single charge of sexual interference following a judge-alone trial.

The central issue on appeal was whether the trial judge improperly curtailed defence counsel's cross-examination of the complainant's mother regarding cash payments for child support.

The appellant argued the mother had been motivated to encourage false allegations due to family law proceedings.

The Court of Appeal found no unfairness in the curtailment, noting that the central issue turned on the complainant's evidence, which the trial judge found clear and compelling.

The mother's evidence was largely peripheral and provided only corroboration.

The court also refused to admit fresh evidence as it failed to satisfy the Palmer test.

The appeal was dismissed.

A 35-year-old female offender was subject to a dangerous offender application following guilty pleas to aggravated assault and breach of probation.

The Crown sought a dangerous offender designation under section 753(1)(a)(i) and/or (ii) of the Criminal Code with an indeterminate sentence.

The court found the offender met the threshold for a pattern of persistent aggressive behaviour demonstrating substantial indifference to foreseeable consequences under section 753(1)(a)(ii), establishing dangerousness beyond a reasonable doubt.

However, the court declined to impose an indeterminate sentence, finding a reasonable expectation that a determinate sentence with a long-term supervision order would adequately protect the public.

The court imposed 7 years imprisonment (less pre-sentence custody credit of 3 years 9 months, leaving 3 years 3 months to serve) followed by a 10-year long-term supervision order.

This addendum addresses the appellant Ronald Cyr's request for clarification regarding the court's refusal to allow him to advance a new Charter argument on appeal.

The appellant sought to argue that sections 7, 11(d), and 11(f) of the Canadian Charter of Rights and Freedoms required that clause 6 of section 3(1) of the Juries Act be expanded to exclude former auxiliary police officers from jury service.

The court declined to permit this new argument, finding no air of reality to the suggestion of bias and noting that sections 670 and 671 of the Criminal Code provided a complete answer to this ground of appeal.

Three accused were convicted of first-degree murder following a trial involving an undercover police operation.

The appellants challenged the conviction on multiple grounds including: (1) the trial judge's refusal to sever the trial; (2) the admissibility of statements made to an undercover officer; (3) jury management issues during sequestration; and (4) various trial procedure matters.

The Court of Appeal upheld the convictions, finding that joint trial was appropriate despite cutthroat defences, the undercover operation did not violate Charter rights, and jury management issues did not constitute a miscarriage of justice.

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching involving his former common-law stepson, as well as assault and breach of recognizance.

The appellant argued that the trial judge erred in assessing the credibility and reliability of the complainant's evidence, specifically regarding inconsistencies, motive to fabricate, collusion, and implausibility.

The Court of Appeal found no error in the trial judge's credibility assessment or application of the burden of proof, concluding that the trial judge adequately addressed the defence's arguments and properly applied the W.(D.) framework.

The appeal was dismissed.

The appellant, a commercial truck driver, appealed his conviction for criminal negligence causing death and his sentence of five years' imprisonment and a fifteen-year driving prohibition.

The appellant had fallen asleep at the wheel, drifted into oncoming traffic, and caused a fatal head-on collision after falsifying his driving logs to avoid rest obligations.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly instructed the jury on the elements of the offence and the distinction from dangerous driving causing death.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit given the appellant's deliberate disregard for safety rules and the need for specific deterrence.

The appellant was convicted of second-degree murder following a stabbing at a party.

The Crown's case was entirely circumstantial, relying on opportunity, motive, and prior inconsistent statements of two witnesses who recanted at trial.

On appeal, the appellant argued the trial judge erred in allowing the Crown to cross-examine its own witnesses under s. 9(2) of the Canada Evidence Act, admitting their out-of-court statements as substantive evidence, and in his jury instructions regarding hearsay, post-offence conduct, and circumstantial evidence.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions.

In a drug prosecution, the court ruled on Charter voir dires concerning post-arrest police conduct and a subsequent telewarrant search.

After the accused asserted his right to counsel, police informed him of a more serious trafficking allegation and a pending search in a manner found to be investigative rather than informational, eliciting inculpatory evidence in breach of s. 10(b).

The court further held that the later ITO relied on information tainted by that breach and omitted material facts linking the accused to another residence, rendering the warrant invalid under s. 8.

Applying the s. 24(2) framework, the court excluded the impugned statement and all evidence seized under the telewarrant.

The accused was charged with sexual assault and touching a complainant for a sexual purpose allegedly occurring when the complainant was a child between 1999 and 2004.

The trial judge applied the credibility and reasonable doubt framework requiring consideration of the accused’s evidence, whether it raised a reasonable doubt, and whether the Crown’s case proved guilt beyond a reasonable doubt.

Although the complainant testified sincerely, the court identified significant reliability concerns arising from inconsistencies, contextual improbabilities, and uncertainty in the complainant’s recollection of key events and locations.

The accused provided clear denials and supporting evidence that was not rejected.

The court concluded that the Crown had not proven the charges beyond a reasonable doubt.

Following a jury conviction for second degree murder arising from the prolonged abuse and death of a child, the court determined the appropriate periods of parole ineligibility under ss. 235 and 745.4 of the Criminal Code.

The sentencing judge assessed the character of each offender, the nature and circumstances of the offence, and the jury’s recommendations.

The evidence established prolonged physical abuse, malnutrition, and deprivation of medical care, culminating in a fatal assault.

The court found beyond a reasonable doubt that one accused committed the final assault causing death, while the other was complicit through failure to protect and participation in the ongoing abuse.

The primary perpetrator received life imprisonment with 18 years’ parole ineligibility, while the secondary participant received life imprisonment with 13 years’ parole ineligibility.

During a murder trial involving allegations that a child died following assaults and a failure to provide necessaries of life, the court considered whether the defence of duress should be left with the jury for one accused.

Evidence was led of a long history of domestic violence and threats by the co‑accused spouse.

The Crown argued there was no evidence that threats were made for the purpose of compelling the accused to commit the underlying unlawful acts.

Applying the air of reality test from Supreme Court jurisprudence, the court concluded that the evidence was capable of supporting an inference that the accused’s failure to act was compelled by ongoing threats and violence.

The defence of duress was therefore left to the jury in relation to omissions arising from a legal duty, though not for acts of commission.

The appellant appealed a second-degree murder conviction arising from a fatal shooting during a gang-related confrontation at a public festival.

The appeal challenged the jury charge on former s. 34(2) self-defence, the refusal to leave provocation under s. 232 to the jury, and the trial judge’s review of the evidence.

The court held that the charge, read as a whole, fairly presented self-defence and correctly focused the jury on the critical moment of the shooting.

It further held that there was no air of reality to provocation because the defence position was deliberate self-preservation, not loss of self-control, and found no material misstatement or omission in the evidentiary review.

The Crown sought to admit statements made by the accused to police during a pre-arrest telephone call and a post-arrest interview.

The accused argued the telephone statements were involuntary because she was not cautioned, and the post-arrest statements were the product of oppressive circumstances, including continued questioning after she requested counsel.

The court found that the accused had an operating mind and made a meaningful choice to speak during the telephone call.

The court also held that the post-arrest interview was not oppressive, as the accused had already consulted with counsel and the police were not required to facilitate further contact.

Both statements were ruled voluntary and admissible.

The offender was convicted by a jury of second degree murder following a stabbing that occurred in an apartment building elevator lobby.

At sentencing, the court considered whether to increase the statutory 10‑year period of parole ineligibility under s. 745.4 of the Criminal Code, having regard to the nature of the offence, the offender’s character, and the jury’s recommendation.

The offender was a young first‑time offender who expressed genuine remorse, and most jurors recommended the minimum period.

Although the attack was vicious and involved a knife carried in anticipation of an altercation, the court concluded the offence did not justify increasing the parole ineligibility period beyond the statutory baseline.

Life imprisonment with 10 years’ parole ineligibility was imposed, along with mandatory firearm prohibition and DNA orders.

The applicant, charged with first degree murder, brought a pre-trial motion for directions on whether the jury should be instructed on self-defence using the former or newly amended provisions of the Criminal Code.

The alleged offence occurred before the Citizen's Arrest and Self-defence Act came into force.

The court held that the presumption against retrospective application of legislation affecting substantive rights was rebutted.

The new provisions were intended to clarify and simplify the law, providing a benefit to claimants, and therefore apply retrospectively to the applicant's trial.

During a trial for second-degree murder, the Crown sought to introduce statements made by the accused to police during a lengthy interrogation.

The court applied the Oickle framework to assess voluntariness.

While the initial portions of the interview were voluntary, the court found that the police crossed the line by suggesting the accused needed to 'spin' his story for the courts and that his lawyer would not investigate his side.

This constituted an improper inducement that overbore the accused's will.

The statements made after this point were ruled involuntary and inadmissible.