fair trial

The accused, charged with second-degree murder, brought an application to sit at counsel table rather than in the prisoner's dock during his trial.

The court reviewed conflicting jurisprudence on the issue and preferred the line of cases holding that the dock is the customary position for an accused.

The court found that seating the accused in the dock does not infringe the presumption of innocence, avoids the prejudice of having multiple security officers surrounding the accused at counsel table, and ensures the accused remains visible to the jury.

The application was dismissed.

The accused, charged with murder, was released on bail.

A mandatory publication ban under s. 517 of the Criminal Code was imposed at the bail hearing.

Following misleading public comments by politicians and the police chief, the accused brought an application to partially lift the publication ban on the bail reasons to counterbalance the misinformation.

The court dismissed the application, finding that s. 517 does not permit partial bans, and while the court has common law jurisdiction to vary the ban, doing so would likely cause more harm than good.

The court held that the accused's fair trial rights would be adequately protected by existing safeguards, including the passage of time, challenge for cause, and jury instructions.

The Crown applied for a temporary publication ban on portions of an agreed statement of fact and bail synopsis relating to an adult accused who pleaded guilty to manslaughter.

The ban was sought to protect the fair trial rights of a young person co-accused who was scheduled to be tried for second-degree murder at a later date.

The court applied the Dagenais/Mentuck test and concluded that a broad ban was not necessary, as alternative measures like jury instructions and the passage of time would mitigate prejudice.

However, a limited ban was granted for evidence that could identify the young person or would be presumptively inadmissible at their trial.

The appellant appealed his convictions on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm, as well as seeking leave to appeal his sentence.

The trial judge refused to grant an adjournment to allow the appellant to retain counsel, resulting in the appellant proceeding unrepresented.

The trial judge failed to address the appellant's inability to read or write and his limited English proficiency despite being informed of these facts.

The trial judge also improperly directed the defence expert to conduct cross-examination of the Crown's expert.

The Court of Appeal found these errors deprived the appellant of a fair trial and allowed the appeal, ordering a new trial.

The appellant appealed his convictions for having care or control of a motor vehicle while impaired and refusing to provide a breath sample.

At trial, the appellant was self-represented.

The appeal court found that the trial judge failed to explain the presumption of care or control under s. 258(1)(a) of the Criminal Code, which compromised the fairness of the trial on that charge as the appellant could not make an informed decision about calling evidence.

The appeal was allowed in part, with a new trial ordered for the care or control charge, while the conviction for refusing to provide a breath sample was upheld.

The applicant, charged with fraud over $5000 for allegedly collecting social assistance overpayments, brought a Rowbotham application seeking a stay of proceedings pending state-funded counsel.

The applicant argued the case was complex and he lacked the means to retain private counsel.

The court dismissed the application, finding the case was primarily fact-based and not sufficiently complex to warrant state-funded counsel at the preliminary inquiry stage, without prejudice to renew the application if committed to trial.

The defence applied for a publication ban on the accused's video-recorded statement to the police and a sealing order for information found on electronic devices seized during a search warrant execution.

The media opposed both orders.

The court applied the Dagenais/Mentuck test and found that the defence failed to establish a serious risk to the administration of justice that necessitated a publication ban or sealing order.

The court emphasized the presumption of open court proceedings and the importance of freedom of the press.

Both applications were dismissed, with a temporary extension granted to allow for potential appeals.

At a bail hearing for an accused charged with second-degree murder, the defence objected to the Crown cross-examining a proposed surety about conversations with the accused regarding the alleged offence.

The defence relied on recent case law suggesting such questions unfairly exploit the bail hearing for discovery.

The court disagreed, ruling that the Crown is permitted to ask such questions.

The court found that these questions do not violate the accused's fair trial rights, fall within the broad scope of evidence permitted at bail hearings, and may be relevant to assessing the strength of the Crown's case and the ongoing risk to public safety.

The accused, charged with first degree murder and attempted murder, applied to sit at counsel table rather than in the dock during his trial.

The court balanced the interests of a fair trial and courtroom security.

Given the accused's in-custody status, criminal record, and institutional infractions, along with the critical need for the jury to have an unobstructed view of the accused for identification purposes, the application was dismissed.

Crown appeal from the acquittal of Aasif Patel on charges of first degree murder and second degree murder in connection with the fatal shooting of Lorenzo Martinez.

The Crown argued that the trial judge erred in refusing to instruct the jury on party liability under section 21(2) of the Criminal Code (common unlawful purpose) and in his instructions regarding section 21(1) liability (aiding and abetting).

The Court of Appeal dismissed the appeal, finding that the Crown had materially changed its legal theory between trial and appeal, which would be unfair to the respondent and offend double jeopardy principles.

The court also found no error in the trial judge's instructions on causation or on the relationship between the liability of the principal and the party.

The accused applied for an order requiring that an Urdu interpreter be provided at trial despite acknowledging that he spoke and understood English.

The court reviewed the constitutional right to interpretation under s. 14 of the Charter and the principles established in R. v. Tran regarding when interpreter assistance is required.

Evidence included the accused’s education and employment history in English-speaking environments and a recorded police interview demonstrating fluent English comprehension and responses.

The court found the accused had not established a real need for interpretation assistance and that the burden of proof on a balance of probabilities was not met.

The application for an interpreter at trial was therefore dismissed.

The accused applied for a Rowbotham order seeking state-funded counsel after Legal Aid refused to approve a change of solicitor following a breakdown in the solicitor-client relationship shortly before trial.

The court considered whether the accused had been denied Legal Aid through his own conduct, whether he had exhausted available means to retain private counsel, and whether counsel was necessary for a fair trial.

The court found the accused had limited financial means, had attempted to retain counsel, and was not solely responsible for the breakdown with prior counsel.

Given the seriousness of the drug trafficking charges, the likelihood of imprisonment upon conviction, and the legal and evidentiary complexity including Charter issues and a jury trial, representation by counsel was necessary.

A conditional stay of proceedings was therefore granted until state-funded counsel is provided.

In a criminal sexual assault prosecution involving two accused and a teenage complainant, the court addressed the appointment of an amicus curiae shortly before the scheduled trial.

One accused had dismissed her counsel one week before trial, creating the prospect that she would appear unrepresented in proceedings involving sensitive evidence from a young complainant.

The court exercised its inherent jurisdiction to appoint an amicus to assist the court, including potentially conducting cross‑examination of the complainant and advising on legal issues.

The appointment was made to ensure a fair and orderly trial and to minimize harm to the complainant while preserving the integrity of the proceedings.

Once the accused retained new counsel before trial commenced, the court discharged the amicus from further involvement.

The accused, charged with fraud over $5,000, sought a conditional stay of proceedings unless the Attorney General provided publicly funded counsel pursuant to a Rowbotham order.

Legal Aid had denied coverage and characterized the accused’s financial disclosure as incomplete and not credible.

The court considered whether counsel was necessary for a fair trial and whether the accused was indigent.

The judge found the case was not beyond the accused’s abilities and that he was familiar with the underlying transactions, could use an interpreter, and had previously managed a significant business enterprise.

The court also found the accused was not forthright about ownership and proceeds from the sale of a home and therefore failed to establish indigence.

The request for a Rowbotham order was dismissed.

The accused brought a Rowbotham application seeking state-funded counsel and a conditional stay of proceedings under ss. 7, 11(d), and 24(1) of the Charter on the basis that he could not afford counsel and required representation to make full answer and defence in a complex criminal prosecution involving 21 counts, including criminal organization and drug trafficking offences.

The court accepted that the charges were serious and involved some complexity but found significant deficiencies in the evidentiary record supporting the claim of financial inability.

Evidence suggested the accused had assets, income, and potential access to seized funds, and had prioritized maintaining property interests over funding his defence.

The court held the accused had not demonstrated he exhausted all reasonable avenues to retain counsel.

The Rowbotham application was therefore dismissed.

The appellant appealed convictions for assault and breach of probation arising from an incident in which he briefly touched a young complainant’s wrist while speaking with two elementary school students outside a school.

Because the complainants were under 18, counsel had been appointed under s. 486.3(1) of the Criminal Code to conduct cross-examination on behalf of the self-represented accused.

The appellant argued that the appointed counsel failed to pursue a critical defence theory that the complainants fabricated the allegation to avoid trouble with their parents for speaking with a stranger.

The court held that counsel appointed under s. 486.3 must pursue relevant and proper lines of inquiry requested by the accused, even if counsel might otherwise decline on tactical grounds.

The failure to pursue the proposed line of cross-examination deprived the appellant of a fair trial.

Rather than ordering a new trial, the court substituted findings of guilt but replaced the sentence with a conditional discharge and probation already completed.

The plaintiff brought a motion to set aside an order dismissing its construction lien action for failure to set the action down for trial within the time required under the Construction Lien Act.

The delay resulted from failures by the plaintiff’s in‑house counsel, who had misinformed the plaintiff about the status of the case.

The defendant opposed restoration of the action, arguing prejudice due to the death of a key witness and lack of merit in the plaintiff’s claim.

The court held that dismissal orders may be set aside where a fair trial remains possible and no substantial prejudice arises from delay.

Finding that the dispute would primarily turn on expert evidence and that documentary records could substitute for the deceased witness’s testimony, the court concluded that the defendant would not suffer irreparable prejudice and restored the action.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck for failure to submit a trial certification form.

The court applied the test governing restoration following administrative dismissal for delay, including whether the delay was intentional, whether it was inordinate and inexcusable, and whether the defendants suffered prejudice.

Although the delay of approximately 31 months was found to be inordinate and not reasonably explained, the plaintiff successfully rebutted the presumption of prejudice and the defendants failed to establish actual prejudice affecting the fairness of a trial.

The court held that the absence of certain radiological studies did not demonstrate a substantial risk that a fair trial was no longer possible.

The action was therefore restored to the trial list, but no costs were awarded.

The appellant appealed summary conviction findings of guilt for assault and wilfully obstructing a peace officer.

The principal issue was whether the trial judge failed to provide the minimum level of assistance required to ensure a fair trial for a self‑represented accused.

The appellate court reviewed authorities establishing that trial judges must provide meaningful guidance to unrepresented defendants regarding the trial process, their rights to cross‑examine, testify, and call evidence.

The court found that the trial judge failed to explain the trial process, the elements of the offences, or the risks of testifying, thereby falling below the minimum standard required.

The convictions were set aside and a new trial ordered.

The accused applied to challenge prospective jurors for cause under s. 638(1)(f) of the Criminal Code on the basis of potential lack of language competency in the language of trial.

The defence argued that the right to challenge jurors on language grounds exists independently of an order under s. 530 governing the language of trial and forms part of constitutional language rights.

The court held that juror language competency is primarily a component of the right to a fair trial and that s. 638(1)(f) operates in conjunction with a prior order under s. 530.

In the absence of such an order and without evidentiary foundation demonstrating an air of reality for the concern, the court found that the standard jury vetting process sufficiently ensures linguistic competency.

The application to challenge jurors for cause was therefore denied.