Kate Oja

Kevine Brown was convicted of possession of heroin for the purpose of trafficking.

The court considered aggravating factors, including the large quantity of heroin (over one kilogram), the accused's wilful blindness to the package's contents, and his willingness to expose his sister to significant risk.

Mitigating factors included his severe health problems and family support.

The court emphasized general deterrence as the primary sentencing principle for major drug cases.

A sentence of nine years in the penitentiary was imposed, with credit for pre-trial custody resulting in a net sentence of seven years and one month.

The accused was arrested following a controlled delivery of a package containing heroin.

During a police interview, he made inculpatory statements.

On a voir dire to determine the admissibility of the statements, the accused argued his s. 10(b) Charter rights were breached and that police offered an inducement regarding leniency for his sister, rendering the confession involuntary.

The court found no Charter breach, as the accused spontaneously spoke upon arrest without being questioned.

The court also applied the Oickle framework and concluded that the police comments did not amount to a strong inducement or quid pro quo that overbore the accused's will.

The statements were ruled voluntary and admissible.

The accused was charged with possession of heroin for the purpose of trafficking after an undercover RCMP officer conducted a controlled delivery of a package from Tanzania.

The package, containing over a kilogram of heroin, was delivered to the accused's sister's apartment.

The accused had instructed his sister to sign for the package using a false name.

The court found that while actual knowledge of the heroin was not proven beyond a reasonable doubt, the accused was wilfully blind to the contents of the package, having admitted he suspected it contained drugs but deliberately choosing not to make further inquiries.

The accused was found guilty.

The accused was charged with drug offences after two packages containing heroin were intercepted.

Following a preliminary inquiry, the accused was discharged on several counts, but the Crown preferred an indictment including charges related to both packages.

The accused brought an application to quash the count relating to the second package, arguing there was no evidence of knowledge or control.

The court granted the application, finding that the modus operandi of the two packages was not sufficiently similar to infer knowledge and control of the second package based on the first.

At a preliminary inquiry, the accused was charged with conspiracy to import heroin from Tanzania and Uganda, importing heroin from Tanzania, and possession of heroin for the purposes of trafficking.

The Crown presented evidence of two intercepted packages containing heroin destined for the accused's address.

While the accused conceded sufficient evidence existed for the possession for trafficking count, the court found insufficient evidence to commit the accused to trial on the importation and conspiracy counts.

The court held that the evidence could not bridge the inferential gap between the accused's knowledge of the package's arrival and his participation in the actual importation process, as no evidence connected him to the arrangements required to bring the drugs across the border.

The accused sought exclusion of a knife alleged to be the murder weapon in a first‑degree murder prosecution, arguing it was discovered as a result of statements obtained in breach of their Charter s. 10(b) right to counsel.

The court found that several statements were indeed elicited in violation of the right to counsel, including roadside questioning and later questioning in hospital.

However, applying the framework in Grant, the court concluded that the knife was independently discoverable through the planned search of the defined area and the canine track leading to the creek.

While the seriousness of the Charter breaches favoured exclusion, the reliability of the physical evidence and its independent discoverability attenuated the impact on the accused’s interests.

The statements were excluded but the knife was admitted into evidence.

In a first‑degree murder prosecution, the court ruled on the admissibility of a video statement given by one accused to police after earlier Charter breaches involving statements obtained before the right to counsel was provided.

The defence argued the later statement was derived from and tainted by the earlier unconstitutional interrogations.

The court held the statement to the interviewing detective was voluntary and not sufficiently connected to the earlier breaches.

A “fresh start” occurred after the accused consulted counsel, received proper cautions, and was interviewed hours later by a different officer.

Even if s. 24(2) of the Charter applied, the court concluded the statement would still be admitted under the Grant framework.

During a jury trial for robbery and murder, the Crown sought to reference similarities between a prior cheque fraud scheme and the alleged murder during closing submissions.

The prior fraud evidence had previously been admitted only to establish financial motive and not as evidence of modus operandi.

Defence counsel objected, arguing that such submissions would improperly expand the permitted use of the evidence and prejudice the defence.

The court held that permitting the Crown to rely on the fraud to characterize the accused’s roles would effectively revisit the earlier evidentiary ruling and risk distracting the jury from the central issue of guilt.

The Crown was therefore prohibited from referring to similarities between the fraud and the murder in closing argument.

In a jury trial for first-degree murder, the court ruled on pre‑charge issues concerning the theories of liability that could be left with the jury.

The Crown sought to rely on constructive first‑degree murder under s. 231(5)(e) of the Criminal Code based on alleged forcible confinement, and on contracted murder under s. 231(3) arising from BBM messages suggesting a promise of a vehicle in exchange for participation in the killing.

The court held there was insufficient evidentiary foundation to leave constructive first‑degree murder to the jury because there was no evidence of unlawful confinement distinct from the killing itself.

However, the BBM messages were capable of supporting a reasonable inference of a murder-for-hire arrangement involving a vehicle as consideration.

The court therefore ruled that the contracted‑murder pathway under s. 231(3) could be left with the jury but not the constructive first‑degree theory.

During a murder trial, the Crown sought a ruling that gestures made by the deceased immediately before death constituted dying declarations.

The deceased, who had suffered catastrophic stab wounds and could not speak, pointed to his abdomen and then toward one of the accused while officers attempted to render aid.

The court considered whether such gestures could qualify as hearsay falling within the dying declaration exception.

Applying the criteria for dying declarations, the court found the circumstances permitted the inference that the deceased expected imminent death and that the gestures related to the circumstances of the homicide.

The judge concluded that the gestures could constitute assertions by conduct and therefore fall within the dying declaration exception, subject to further argument regarding admissibility.

In a first‑degree murder trial, the Crown sought to introduce evidence of prior discreditable conduct arising from Blackberry Messenger chats and related events, including possession of a stolen vehicle, a cheque‑cashing fraud, a concurrent plot to rob and kill another individual, and evidence relating to the accused’s financial misrepresentations.

The court considered the governing principles for admitting prior discreditable conduct, requiring a link to a live issue and a probative value that outweighs prejudice.

The court admitted evidence relating to a stolen vehicle, a cheque fraud shortly before the murder, efforts to obtain firearms, and chats revealing a concurrent plot to rob and kill another individual because they were intertwined with the narrative and relevant to motive, planning, deliberation, and state of mind.

However, the court excluded certain other evidence, including a photograph involving an imitation firearm, related web searches, and earlier unrelated robbery‑murder planning discussions, finding their prejudicial effect outweighed their limited probative value.

Evidence concerning the accused’s financial misrepresentations was admitted as relevant to motive.

The accused brought a Charter motion seeking exclusion under s. 24(2) of digital evidence obtained from Blackberry phones and a Blackberry Playbook after the court previously found the searches violated s. 8 of the Charter.

Applying the framework in R. v. Grant, the court assessed the seriousness of the Charter breach, the impact on the accused’s privacy interests, and society’s interest in adjudication on the merits.

The court admitted certain communications data, including BBM chats, SMS messages, emails, notes, and call logs, but excluded other categories of device data such as browser history, cookies, multimedia files, and related metadata.

The accused also challenged production orders issued to telecommunications and health authorities.

The court rejected those challenges, holding that sufficient grounds existed for the issuing justice and declining to excise references to chats that were also lawfully obtained from another device.

The accused, charged with first degree murder, brought a Charter motion challenging the search of Blackberry devices and other electronic devices seized during the investigation.

The police conducted physical chip extraction and later re‑examined the resulting data using updated forensic software, which revealed deleted Blackberry Messenger communications.

The applicants argued the search warrant was overbroad and the searches were conducted unreasonably contrary to s. 8 of the Charter.

The court held that the police exceeded the limits of the warrant by conducting a sweeping search of multimedia, browser data, and other information beyond communications authorized in the Information to Obtain.

The searches of the Blackberry devices were found to violate s. 8, while other search warrants and production orders challenged by one accused were upheld.

The accused, charged with first degree murder, brought a Charter application challenging the validity of a search warrant used to extract data from their Blackberry phones.

They argued the warrant was facially invalid because it referenced the OPP property vault as the place to be searched, contained outdated language permitting searches related to the 'suspected commission' of an offence, and imposed a time limit that allegedly expired before the forensic analysis occurred.

They also argued the warrant did not authorize data extraction and that a later re‑analysis of the data with updated software required a new warrant.

The court held that the warrant, read together with the Information to Obtain and appendix, authorized the search of the phones and their data.

The court further found the time limitation applied only to entry and seizure, not to later forensic analysis, and that the subsequent software‑based re‑analysis constituted a further analysis of lawfully seized data rather than a new search.

The defendant brought a Charter section 11(b) application seeking a stay of proceedings for unreasonable delay in trial.

The defendant was arrested on December 2, 2011, for mischief to property, causing a disturbance, and assault causing bodily harm arising from an incident at a Toronto bus station.

The trial was scheduled for July 2-3, 2013, approximately 19 months after the Information was sworn.

The court found that the Crown and police were responsible for approximately 14 months of delay through incomplete disclosure, failure to respond to defence counsel communications, Crown non-attendance at scheduled proceedings, and inconsistent positions on procedural requirements.

The court granted the stay, finding a violation of the defendant's right to trial within a reasonable time.