J. Trehearne

During a joint trial, counsel for one of the co-accused sought directions on the appropriate timing to introduce propensity or bad character evidence against the other co-accused through cross-examination of a Crown witness (a 'Pollock & Morrisson' application).

The court ruled that to maintain full answer and defence and procedural fairness, notice of such an application must be provided at the conclusion of the Crown's examination-in-chief, prior to the commencement of cross-examination by the co-accused's counsel.

The Crown brought an application to introduce evidence of prior discreditable conduct against the co-accused in a first-degree murder trial.

The Crown sought to admit evidence of the co-accused's prior criminal collaboration, access to firearms, and use of an animal incinerator to establish their relationship, motive, and the actus reus of the offence.

The court applied the test for admitting discreditable conduct, balancing probative value against moral and reasoning prejudice.

The court granted the application in part, finding that certain evidence was highly probative to understanding the co-accused's relationship and rebutting anticipated defences, while excluding other evidence that posed an insurmountable risk of propensity reasoning.

The applicant, charged with first-degree murder, brought an omnibus application to exclude evidence under the Charter.

He challenged the validity and execution of a search warrant at his residence, the lawfulness and manner of his arrest, and the admissibility of a photo line-up identification.

The court found that the Information to Obtain the search warrant contained sufficient grounds and that the dynamic entry was justified by the potential presence of a firearm.

The court also held that the police had reasonable grounds for the arrest and did not use excessive force.

Finally, the court ruled that the photo line-up substantially complied with best practices and any flaws went to weight rather than admissibility.

The application was dismissed.

The applicant brought a pre-trial motion to exclude both sworn and unsworn jurors from the courtroom during the 'rotating triers' challenge for cause process.

The Crown and co-accused supported the application.

The court considered conflicting jurisprudence on whether the 2008 amendments to section 640 of the Criminal Code ousted the court's inherent jurisdiction to exclude jurors absent a specific application for 'static triers' under section 640(2.1).

The court concluded that the legislative amendments did not limit its inherent jurisdiction to control its process and ensure an impartial jury under section 11(d) of the Charter.

The application was granted, and all jurors were ordered excluded during the challenge process.

A media coalition applied for an order allowing the publication of certain pre-trial motions in a high-profile first-degree murder case, arguing that the statutory publication ban under s. 648(1) of the Criminal Code should not apply to all pre-trial motions.

The Crown and the accused opposed the application, arguing that s. 648(1) provides a blanket statutory ban on all reporting of any information concerning pre-trial applications brought before the designated trial judge.

The court dismissed the media's application, holding that the statutory ban under s. 648(1) is mandatory and applies to all pre-trial motions adjudicated by the trial judge, whether litigated before or after a jury is selected.

The accused applied under s. 599(1) of the Criminal Code for a change of venue for a first‑degree murder trial, arguing that extensive pre‑trial publicity and community response in Hamilton had irreparably tainted the local jury pool.

The Crown and the co‑accused opposed the motion, submitting that the presumption favouring trial in the territorial jurisdiction of the alleged offence had not been displaced and that standard jury selection safeguards would ensure fairness.

The court reviewed the nature, extent, and timing of media coverage, including internet and social media discussion, and found that most reporting was factual and not highly prejudicial.

It held that the applicant failed to demonstrate a fair and reasonable probability of prejudice that could not be addressed through the jury selection process.

The motion for a change of venue was dismissed.