Kimberly Diane Hyslop

The accused pleaded guilty to impaired driving causing death contrary to section 320(14)(3) of the Criminal Code.

On February 24, 2023, the accused drove his vehicle while impaired with his six-year-old daughter as a passenger for approximately 3.5 hours, ultimately colliding with another vehicle and killing the driver.

The accused's blood alcohol concentration was more than twice the legal limit.

The court imposed a sentence of six years less 99 days imprisonment, considering aggravating factors including the extended period of impaired driving, extremely high blood alcohol levels, and the presence of the accused's young daughter in the vehicle, balanced against mitigating factors including the guilty plea, genuine remorse, and significant rehabilitative efforts undertaken while on bail.

The defence brought a motion for disclosure of emails exchanged between Crown counsel, asserting their relevance to a potential abuse of process application.

The accused had been convicted of second-degree murder.

The emails concerned prior disclosure of third-party suspect material to an alternate suspect (I.A.) who testified for the defence, which contradicted the Crown's cross-examination suggesting I.A. had no legitimate basis for his knowledge.

The court found the emails were subject to litigation privilege, which had not expired due to I.A.'s pending appeal.

After reviewing the emails, the court found no evidence of Crown misconduct, bad faith, or improper motives that would warrant disclosure under the "misconduct" exception to privilege.

The motion for disclosure was dismissed, but the emails were sealed for appellate review given the court's mistaken belief about its post-verdict jurisdiction for an abuse of process application in a jury trial, and concerns regarding unusual juror conduct.

This ruling addresses the admissibility of discreditable conduct evidence in a second-degree murder trial.

The Crown sought to introduce various pieces of evidence, including the accused's prior firearm possession, drug trafficking, and involvement in other incidents.

Initially, the court excluded most of this evidence, finding its prejudicial effect outweighed its probative value, particularly due to the risk of propensity-based reasoning.

However, the evidentiary landscape shifted when a defence witness indicated they would testify as the shooter.

This change rendered some previously excluded evidence, such as the accused's drug possession for trafficking and being shot, admissible as it became highly probative to rebut the defence's theory and establish the accused's motive to carry a firearm.

The court emphasized the dynamic nature of relevance and the balancing act between probative value and prejudicial effect, ultimately exercising its discretion to exclude certain evidence to ensure trial fairness and manageability.

In a second-degree murder trial, the Crown sought to admit after-the-fact conduct evidence to establish the accused's state of mind regarding the defences of provocation and defence of another person.

The court ruled that while such evidence is generally admissible if relevant to state of mind, the specific conduct of the accused (jogging with a cup, smoking, changing hairstyle, leaving the scene) was too equivocal to support an inference about his state of mind at the time of the shooting.

Consequently, the evidence was deemed inadmissible for determining culpability or state of mind for murder, but remained admissible for the purpose of identifying the shooter.

The accused, charged with second-degree murder, sought to have the defence of provocation put to the jury.

The court first addressed the constitutionality of the July 2015 amendment to s. 232(2) of the Criminal Code, concurring with R. v. Mujber that the requirement of an indictable offence punishable by five or more years imprisonment violated s. 7 of the Charter and was of no force and effect.

The court then assessed whether there was an air of reality to the provocation defence, considering the four elements: wrongful act or insult, sufficiency to deprive an ordinary person of self-control, the accused acting in response, and acting suddenly before passion cooled.

Despite the accused denying being the shooter, the court found that, taking the defence evidence at its highest, a jury could reasonably infer the elements of provocation, including a wrongful act (brandishing a weapon at a friend) and a sudden reaction, influenced by the accused's recent shooting injury and age.

The defence of provocation was therefore left with the jury.

This ruling addresses the admissibility and scope of use for intercepted communications in a second-degree murder trial.

The accused, Donald Musselman, and a third-party witness, I.A., both testified that I.A. was the shooter.

The Crown sought to introduce intercepts to rebut this defence, arguing they undermined I.A.'s claim and suggested Musselman directed I.A. to falsely assume responsibility.

The court conducted a probative-prejudicial balancing analysis for numerous intercepts, admitting some for impeachment purposes only, while excluding others due to their highly prejudicial nature, including references to extrinsic criminal conduct and a criminal lifestyle.

The judge declined to admit the intercepts for the truth of their contents as admissions, exercising judicial discretion to ensure overall trial fairness and prevent propensity-based reasoning, given the volume of discreditable conduct evidence.

This ruling addresses whether the defence of "defence of another person" had an air of reality in a second-degree murder trial, meaning it should be put to the jury.

The accused, Donald Musselman, was charged with the murder of Markland Campbell.

The Crown argued against the air of reality, citing the accused's denial of being the shooter and potential inconsistency with a provocation defence.

The court found that despite the accused's denial, there was sufficient circumstantial evidence and reasonable inferences to support the three elements of self-defence (reasonable belief of threat, defensive purpose, reasonable response) to meet the evidential burden for an air of reality.

The judge emphasized resolving doubts in favour of leaving the defence to the jury and that inconsistent defences can both have an air of reality.

Donald Musselman was charged with second-degree murder.

The Crown sought to introduce wiretap intercepts as part of its case-in-chief to prove identification and rebut an alternate suspect defence.

The court ruled that the intercepts, while probative, carried significant risks of moral and reasoning prejudice if introduced early, especially given their content (extrinsic criminal behaviour, gang discussions, etc.) and the uncertainty of defence witnesses testifying.

The court initially denied their introduction as part of the Crown's case but allowed their use for cross-examination if the defence called I.A. or Musselman to testify that I.A. was the shooter, as this would crystallize their probative value.

The accused, charged with second-degree murder, brought a Corbett application to exclude certain prior convictions (unauthorized possession of a firearm and assault) from being used for credibility purposes during his testimony.

The court granted the application, finding that these convictions had limited probative value on credibility and posed a significant risk of propensity reasoning by the jury, outweighing their probative value.

The court noted that other convictions (failure to comply and possession for trafficking) and evidence of involvement in the drug subculture would still be admissible, preventing a distorted picture of the accused.

Following a judge-alone trial on one count of sexual assault against each accused arising from an alleged non-consensual threesome, the central issue was whether the Crown proved beyond a reasonable doubt that the complainant did not consent.

The court applied the W.(D.) framework and reviewed the complainant’s testimony against prior statements, medical evidence, nurse evidence, dating-app messages, and the testimony of both accused.

The court found multiple material inconsistencies and significant shifts in the complainant’s evidence, while accepting the evidence of one accused and much of the other accused’s account as credible and reliable.

The court held that, on the whole of the evidence, the complainant’s words and conduct as found by the court were not inconsistent with consent in law.

Both accused were acquitted.

The accused, Salam Fadhil, sought to bring a late Charter application under s. 10(b) and s. 24(2) to exclude his statement to police, alleging a violation of his right to counsel of choice.

The Crown opposed the application, arguing it was untimely and prejudicial.

The court granted the application, finding a valid reason for the late filing and that any prejudice to the Crown could be addressed through procedural accommodations, such as allowing more latitude in cross-examination and a separate voir dire.

The court emphasized that judges should be cautious before dismissing Charter claims due to notice non-compliance, considering factors like the reason for delay, prejudice, and disruption.

The accused, Mahmood Ahmad and Salam Fadhil, charged with sexual assault, brought a voir dire application to exclude their statements to police, arguing they were not voluntary due to language comprehension issues.

The court conducted a blended voir dire and found that both accused had sufficient language comprehension in French (for Fadhil) and English (for Ahmad) to understand their rights, including the right to silence and the consequences of speaking to police.

The court dismissed the application, ruling that the statements were voluntary and admissible at trial.

In a criminal trial alleging historical sexual offences against a former foster child, the accused brought a lost-evidence application seeking a stay after police destroyed a 2002 written statement made by the complainant.

The court held that the statement was relevant disclosure and that the Crown failed to discharge its burden of showing the destruction did not result from unacceptable negligence, thereby establishing a s. 7 Charter breach.

However, the court found no substantial or material prejudice because the defence had extensive alternative material with which to cross-examine the complainant and test credibility.

A stay was refused, and the remedy granted was an inference that the lost statement would not have assisted the Crown, together with consideration of the missing statement in assessing the complainant's credibility and reliability.

Marc Auguste pleaded guilty to dangerous driving causing bodily harm after failing to stop at a stop sign, resulting in severe injuries to the victim.

The court considered aggravating factors such as the extent of injuries, speeding, and the nature of the vehicle, alongside mitigating factors including a guilty plea, lack of criminal record, remorse, and pro-social lifestyle.

The Crown sought a four-month jail sentence, while the defence requested a suspended sentence with probation and a one-year driving prohibition.

The court imposed a suspended sentence with three years' probation, 240 hours of community service, and a six-month curfew, declining a driving prohibition to allow the offender to maintain employment.

The applicants sought disclosure of the complete investigative file relating to a homicide investigation that formed the basis for wiretap authorizations under Part VI of the Criminal Code.

The Crown resisted disclosure, arguing that materials not explicitly relied upon in the Information to Obtain were irrelevant and protected by public interest privilege.

The court held that the accused's right to make full answer and defence applies to pre-trial evidentiary hearings, including Garofoli applications.

The court established that materials in the "investigative file" are presumptively relevant and should be disclosed, defined as all materials accumulated by the investigating agency as a consequence of its investigative efforts in the investigation giving rise to the authorization itself.

The court ordered disclosure of specified materials from the homicide investigation file, subject to redactions protecting informer privilege, while declining to order disclosure of the entire investigative file to prevent needless complexity.

The offender, an aboriginal man with a lengthy criminal record, was convicted of aggravated assault, weapons offences, and breach of recognizance after stabbing a store owner during a dispute over a cell phone data plan.

The court considered Gladue factors, including the offender's history of abuse, bullying, and substance abuse, alongside the need for denunciation and deterrence.

The offender was sentenced to a global term of 33 months' imprisonment (credited as time served plus 6 additional months) followed by three years of probation.

The Crown applied for orders under sections 714.1 and 486.2 of the Criminal Code to allow a complainant, suffering from severe social phobia and other health issues, to testify via video-link from British Columbia and outside the courtroom via closed-circuit television (CCTV).

The respondents opposed the video-link and sought to have counsel present in the room during cross-examination.

The court granted the Crown's application for video-link testimony, finding it would not undermine the fairness of the trial or the respondents' ability to make full answer and defence, given the complainant's medical and financial circumstances.

The court also indicated that if required, defence counsel would conduct cross-examination from the courtroom.

The accused, charged with attempted murder, brought a motion to exclude a statement made to police.

Due to a technical error, the audio of the video-recorded interview was mostly unrecorded, and the interviewing officer's notes were sparse.

The court found the statement was voluntary and that the recording failure did not breach the accused's Charter rights.

However, the court excluded the audio component because its probative value was outweighed by its prejudicial effect, while allowing the silent video and the officer's testimony regarding the gist of the interview.

Sentencing decision for robbery and multiple breaches of recognizance arising from a late-night convenience store robbery in which the offender threatened to shoot the clerk with a purported firearm.

The offender pleaded guilty and had served approximately 16 months of pre‑trial custody, credited as two years.

The court considered the offender’s extensive criminal record alongside Gladue factors, including a traumatic upbringing, substance abuse, and systemic issues affecting Indigenous offenders.

Applying the principles from Gladue, Wells, and Ipeelee, the court found the punitive objectives of sentencing had been satisfied by pre‑trial detention.

A suspended sentence with three years’ probation was imposed, with rehabilitative and community‑based conditions.

The accused was charged with driving with a blood alcohol level over 80 mg/100 ml contrary to section 253(1)(b) of the Criminal Code.

At trial, the accused brought a Charter application alleging breaches of sections 8, 9, and 10 of the Canadian Charter of Rights and Freedoms.

The accused challenged the validity of the traffic stop, the grounds for the roadside screening demand, and the timing of rights to counsel.

The court found that the traffic stop was lawful under the Highway Traffic Act, that the officer had reasonable grounds to make the roadside demand, and that any delay in providing rights to counsel was minimal and did not constitute a Charter violation.

The court dismissed the Charter application and found the accused guilty.