J. Rosen

During a re-trial for second-degree murder, the accused brothers sought to have the partial defence of provocation left to the jury.

The principal shooter, John, argued he was provoked by the victim's threats.

The court found an air of reality to John's claim, despite evidence of prior threats and preparation.

However, the court ruled that provocation is not available in law to an aider, Mato, as it only applies to the person who committed the murder.

Furthermore, there was no air of reality to provocation for Mato based on the evidence.

In a pre-trial ruling for a second-degree murder case, the court determined the appropriate jury selection procedure following the enactment of Bill C-75, which abolished peremptory challenges.

The defence proposed combining the challenge for cause and stand-aside inquiries.

The court rejected a combined approach but permitted a limited expansion of the challenge for cause questions.

The court established a procedure where, after the challenge for cause, a specific question is asked to assess juror competence, allowing counsel to make submissions on whether the judge should exercise the enhanced stand-aside power under s. 633 of the Criminal Code to maintain public confidence in the administration of justice.

The Crown brought an application regarding the jury selection procedure for a second-degree murder trial during the COVID-19 pandemic.

The Crown proposed that the Sheriff divide the jury panels into smaller groups in the absence of the accused, arguing the proposed 'B.C. Model' violated the Criminal Code.

The court dismissed the Crown's application, finding that dividing the panels in the absence of the accused would violate their right to be present at trial under section 650(1) of the Criminal Code.

The court adopted the B.C. Model, which allows for random selection and identification of jurors in open court with the accused present, while accommodating physical distancing requirements.

The applicant, a mortgage broker charged with multiple counts of sexual assault and fraud, brought a pre-trial motion seeking the production of third-party financial and police records relating to the complainants and other witnesses.

The court applied the framework under sections 278.1 to 278.9 of the Criminal Code.

The court found that while some financial records were likely relevant to the fraud allegations and the narrative of the transactions, the applicant failed to establish the likely relevance of personal banking records and police occurrence reports.

The court ordered the production of specific records that met the threshold and denied the remainder.

During a joint trial for the murder of a child, the co-accused's counsel produced previously undisclosed photographs depicting the victim chained to a bed.

The applicant sought a severance of his trial, arguing the late disclosure undermined his cross-examination strategy and created fundamental unfairness.

The court dismissed the application, finding that the late production was a natural response to the applicant's cutthroat defence tactics and did not violate Crown disclosure obligations or create an injustice requiring separate trials.

The Crown sought to adduce videotaped statements of two young complainants under s. 715.1 of the Criminal Code in a trial for historical sexual offences.

The accused conceded the prerequisites were met but sought to edit out portions of the statements, arguing they exceeded the scope of 'the acts complained of'.

The court held that in cases of ongoing abuse, the statutory phrase includes the accused's treatment of the complainants leading up to and during the period of the charges, as this provides necessary context.

The court ordered specific edits to remove irrelevant, hearsay, and overly prejudicial comments while admitting the contextual evidence.