John Rosen

The accused was convicted at trial of second degree murder after stabbing the deceased six times during a bar altercation.

The majority of the Court of Appeal overturned the conviction and ordered a new trial, finding an air of reality to the defence of provocation.

The Crown appealed as of right.

The Supreme Court of Canada, applying a correctness standard of review, found no error in the trial judge's determination that there was no air of reality to the provocation defence.

On the evidence, the accused did not act 'on the sudden' before passion could cool — his reaction was the culmination of an altercation he both instigated and anticipated, and he had time and opportunity to reflect before stabbing the deceased.

The accused was charged with willfully promoting hatred against gay men under s. 319(2) of the Criminal Code after distributing anti-gay flyers at the 2016 Toronto Pride Parade.

The flyers contained graphic images and medical claims about the dangers of the 'homosexual lifestyle', alongside religious messaging.

The court found that while the flyers were offensive and contained exaggerations, they fell into the 'grey zone' between legitimate expression and hate speech, lacking the hallmarks of extreme vilification.

The court also found a reasonable doubt regarding the accused's specific intent to promote hatred, resulting in an acquittal.

The Crown brought an application for an order permitting court security officers to place soft, silent shackles on the young person during his trial for second-degree murder.

The young person opposed the use of shackles, arguing that enhanced procedural protections under the Youth Criminal Justice Act required the least restrictive measures.

The court granted the application, finding that silent shackles balanced the need for courtroom security and the prevention of escape with the young person's dignity and the presumption of innocence, as the shackles would not be visible to the jury.

The young person, charged with second-degree murder, brought a pre-trial application for directions regarding jury selection procedures.

The case had attracted significant pretrial publicity.

The court established a comprehensive jury selection protocol, including liberal pre-screening, specific anti-bias instructions, and a focused challenge for cause process to address potential partiality from media exposure.

The trial judge determined she would ask the challenge questions and adjudicate the challenges individually with other prospective jurors excluded.

The Crown applied to qualify an expert witness to testify on the history and tropes of anti-gay discrimination in the trial of the accused for willful promotion of hatred.

The accused had distributed flyers at the Toronto Pride Parade.

The court applied the Mohan criteria and found that while the expert was qualified and capable of giving unbiased evidence despite his advocacy background, the evidence was not necessary.

The court held that a properly instructed jury could determine whether the flyer constituted hate speech without expert assistance.

Furthermore, the court found that the cost-benefit analysis favoured exclusion due to the high risk of distracting the jury with debates over religious beliefs and political values.

The application was dismissed.

The Crown brought an application to introduce flyers distributed by the accused in Saskatchewan in 2000 and 2001 as evidence of motive in a hate speech trial.

In an addendum to previous reasons, the court held that while two of the flyers were capable of showing animus towards gay people, their prejudicial effect outweighed their probative value.

The Crown's application to introduce the Saskatchewan flyers was dismissed.

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 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 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.

The Crown sought leave to call reply evidence from a former federal drug prosecutor regarding general expectations of the federal Crown concerning the preparation of police Crown briefs, disclosure obligations, and the handling of confidential informants.

The proposed evidence was intended to rebut defence testimony suggesting disclosure had been made in accordance with Department of Justice policy.

The court held the evidence remained only marginally relevant because no evidentiary link connected those general expectations to the accused police officers or their training.

Given its limited probative value and the risk that calling a sitting Superior Court judge as a witness would unduly influence the jury, the court found the potential prejudice outweighed the minimal probative value.

The application to introduce the reply evidence was therefore refused.

In a criminal trial involving allegations of assault, theft, perjury, and conspiracy to obstruct justice by police officers, the Crown sought to introduce Toronto Police Service directives and evidence of standard police practices.

The defence objected on grounds including irrelevance, prejudice, and hearsay.

The court held that the directives and expert evidence regarding general police norms were admissible because they provided context for assessing the accused officers’ conduct and state of mind, particularly regarding omissions in memo books, handling of seized property, disclosure practices, and use of informants.

However, testimony about how particular directives were implemented at a specific police division without personal knowledge was excluded as hearsay.

Selected directives and limited expert evidence were admitted subject to these constraints.

Media organizations sought permission to use electronic devices to transmit information from inside the courtroom and to make audio recordings during a criminal jury trial.

The court considered s. 136 of the Courts of Justice Act and an applicable practice direction permitting unobtrusive audio recording by journalists solely to supplement handwritten notes.

The court authorized such audio recordings and permitted journalists to transmit information from inside the courtroom, provided proceedings were not disrupted.

The court also established a procedure governing media access to large volumes of documentary exhibits, requiring undertakings preventing publication until a judicial determination confirmed sufficient evidence to place the document before the jury.

A publication restriction was ordered for specified personal identifying information contained in documentary materials.