Anne London Weinstein

The Crown sought reconsideration of a preliminary inquiry judge's ruling denying a section 540(7) application to file transcripts of witness statements.

The initial judge had rejected the application as inadequately presented and lacking sufficient grounding.

The Crown subsequently renewed the application with a fuller record.

The presiding judge ruled that reconsideration was permissible, finding that the initial ruling was not a final determination on the merits of section 540(7) admissibility but rather a rejection of the application as presented.

The judge held that interlocutory evidentiary rulings can be reconsidered where there is no prejudice to the defence and where the interests of justice support reconsideration, particularly in preliminary inquiries where evidentiary errors cannot be appealed.

The accused faced 22 charges involving seven different female complainants, including sexual assault, unlawful confinement, theft, mischief, and criminal harassment.

The accused targeted intoxicated women in the Ottawa market area, offering them rides in his vehicle, taking them to his apartment, and stealing their cell phones.

He subsequently used the stolen phones to harass the victims and others.

The court applied the W.(D.) test to assess credibility, rejecting the accused's testimony as unreliable and contradictory.

The accused was found guilty on 20 of the 22 counts, with the court finding that he unlawfully confined and sexually assaulted multiple victims, stole their property, and engaged in persistent criminal harassment.

The Crown sought admission of cross-count similar fact evidence in a multi-count indictment involving allegations of sexual assault, forcible confinement, theft, and criminal harassment involving several complainants.

Identity was admitted by the accused, leaving actus reus, modus operandi, and complainant credibility as live issues.

Applying the governing test from R. v. Handy, the court assessed whether the probative value of the proposed evidence outweighed its prejudicial effect.

The court found striking contextual similarities across several complainants, including circumstances involving intoxicated victims, use of a vehicle, loss of personal property, and subsequent communications from the accused.

Most of the requested similar fact evidence was admitted, subject to limited exceptions where the nexus between incidents was insufficient.

In a criminal trial, the Crown brought a motion seeking admission of a witness’s prior e-mail statement as past recollection recorded.

The witness had no present memory of certain events but confirmed she had authored the statement and believed it to be truthful when made.

The court applied the four-part test for past recollection recorded evidence set out in R. v. Fliss and affirmed in appellate authority.

Despite a three‑week delay between the incident and the creation of the statement, and defence arguments regarding possible tainting through discussions with others, the court found the record reliable, made within a reasonable time, and vouched for by the witness.

The statement was therefore admitted as evidence.

On a voir dire, the court considered whether a lengthy videotaped police interview of the accused was voluntary and admissible under the common law confessions rule.

The defence argued that the interview involved oppressive circumstances and inducements and that the statement should alternatively be excluded under s. 24(2) of the Charter for breach of the accused’s s. 10(b) right to counsel.

The court applied the framework in R. v. Oickle and examined the entire context of the interrogation, including duration, questioning techniques, and the accused’s conduct during the interview.

The court found the interview was not oppressive and that the accused generally retained control over what information he shared.

However, certain comments by police suggesting that speaking could affect which charges were pursued created a quid pro quo inducement raising a reasonable doubt about voluntariness for statements made thereafter.

The court admitted the portion of the interview up to a specified point in the transcript and excluded the remainder.

The offender, an Aboriginal man, was convicted of second degree murder following a brutal attack on the victim.

The mandatory sentence was life imprisonment, and the sole issue was the period of parole ineligibility.

The Crown sought 15 years, while the defence sought the minimum 10 years.

The court extensively reviewed the offender's profound intergenerational trauma, including the impact of residential schools on his parents, severe childhood abuse, neglect, and systemic racism, applying the Gladue and Ipeelee principles.

Balancing the gravity of the offence with the offender's reduced moral culpability due to these systemic factors, the court set the period of parole ineligibility at 10 years.

In a mid-trial ruling during a murder trial, the court considered whether the partial defence of provocation should be left with the jury.

The accused had armed himself with a hammer before confronting the victim, anticipating a violent response.

When the victim reached for a sword, the accused attacked him.

The court applied the air of reality test and found no evidence that the victim's reaction was sudden or unexpected by the accused.

Consequently, the defence of provocation lacked an air of reality and was not left with the jury.

During a murder trial, the Crown brought a mid-trial motion for a mistrial, alleging that defence counsel misled the court and the Crown by failing to disclose an interview with a former co-accused before seeking permission to cross-examine him.

The court found that while defence counsel showed poor judgment in not disclosing the interview, the resulting prejudice to the Crown was minimal and theoretical.

Given the late stage of the trial, the strong forensic evidence, and the Crown's own inappropriate conduct during closing addresses, the court concluded that a mistrial was not justified and dismissed the application.

During a trial for second-degree murder, the defence sought to call a former co-accused as a witness and cross-examine him.

The co-accused had previously pled guilty to manslaughter, and the Crown had decided not to call him as a witness.

The defence argued that cross-examination was necessary to challenge the co-accused's earlier statements to police, which implicated the accused as the primary attacker.

The court granted the application, finding that restricting the defence to standard rules for challenging one's own witness would undermine the accused's right to make full answer and defence, particularly given the leading nature of the police interview with the co-accused.

Mid-trial evidentiary ruling in a homicide prosecution addressing the admissibility of disposition evidence relating to the deceased.

The defence sought to adduce evidence of a prior violent altercation between the deceased and police officers to support the inference that the deceased reacted aggressively when verbally confronted, thereby raising a reasonable doubt regarding intent for murder and supporting a potential provocation argument.

Applying the principles from Scopelliti and related jurisprudence, the court considered relevance and weighed probative value against prejudicial effect.

The court held the prior incident was sufficiently probative of the deceased’s tendency to react violently in confrontational situations and that any risk of prejudice could be managed through jury instructions.

The defence was therefore permitted to call the evidence.

During a jury trial for homicide, the Crown brought a mid‑trial application seeking to introduce similar fact evidence of the accused’s alleged violent conduct toward individuals he believed to be paedophiles, including an assault on another inmate while in custody after the charged offence.

The Crown argued the evidence was relevant to motive, animus, intention, and to cross‑examine a defence psychiatric expert regarding the accused’s mental state.

Applying the framework from R. v. Handy, the court held that although the evidence had some relevance to hostility toward paedophiles, its probative value was significantly reduced because similar animus was already before the jury and the proposed incident occurred two years after the alleged homicide.

The court found the moral and reasoning prejudice from introducing the detention‑centre assault—particularly a surveillance video—far outweighed its probative value and risked diverting the jury from the issues in the trial.

The Crown was therefore prohibited from adducing evidence about that assault but was permitted limited cross‑examination about other admitted past altercations and hostility toward child molesters.

Mid‑trial Corbett application in a second degree murder prosecution where the accused sought to limit cross‑examination on prior convictions if he testified.

The defence sought to exclude several assault and robbery convictions from the accused’s youth and adult criminal record.

Applying the balancing approach from R. v. Corbett and s. 12(1) of the Canada Evidence Act, the court considered the nature, age, and similarity of the convictions, along with fairness to the trial process and potential prejudice.

The court concluded that certain youth assault convictions and a later adult assault conviction should be excluded, and that youth robbery convictions should be edited to theft convictions to reduce moral prejudice while preserving the integrity of the credibility assessment.

The accused was charged with second degree murder and challenged the admissibility of several statements made to police following his arrest, alleging breaches of his rights under ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms and the common law confessions rule.

The court examined whether the statements were voluntary and whether any Charter breaches required exclusion under s. 24(2).

The court found that statements made in response to questioning by an officer while the accused was detained in a police cruiser and before being advised of his right to counsel were involuntary and obtained in breach of s. 10(b).

Those statements were excluded.

All other spontaneous or later videotaped statements, made after the accused had been advised of his rights and had consulted counsel, were found voluntary and admissible.

The Crown brought a pre‑trial motion seeking to admit videotaped police interviews of three witnesses under ss. 715.1 and 715.2 of the Criminal Code.

The defence opposed admission, arguing the statements did not describe the “acts complained of” and that their admission would prejudice the accused.

The court reviewed jurisprudence interpreting the phrase “acts complained of” and concluded that the videotaped statements primarily concerned events preceding the alleged killing and therefore did not fall within the statutory requirement.

As the statements did not describe the acts forming the basis of the indictment, the statutory prerequisites were not met.

The Crown’s applications to admit the video statements were dismissed.

The Crown brought a pre‑trial application under s. 486.1 of the Criminal Code seeking permission for support persons to accompany three witnesses while testifying.

The defence consented to support persons for two witnesses with acknowledged mental disabilities but opposed the request for a third witness, arguing insufficient evidence of disability or necessity.

The court considered the statutory presumption under s. 486.1(1) and the discretionary standard under s. 486.1(2), including factors such as the witness’s age, the nature of the offence, and the witness’s relationship with the accused.

The court found no evidence that the third witness suffered from a mental or physical disability or required support to provide a full and candid account.

The application was granted for the two witnesses under s. 486.1(1) but denied for the third witness under both subsections.

On a pre‑trial motion in a murder prosecution, the accused sought relief concerning the Crown’s intention to rely on a written record to support a KGB application admitting hearsay statements of the deceased under the principled exception.

The defence argued it should be able to test the reliability of the statements through cross‑examination of the civilian witnesses who reported them.

The court held that although the Crown could proceed on the written record, fairness required that the defence be permitted to cross‑examine the relevant witnesses on the KGB voir dire.

To avoid prejudice to the accused in locating or preparing potentially hostile witnesses, the Crown was required to produce them if the defence elected to call them.

The Crown appealed a Superior Court decision dismissing its application for certiorari.

The preliminary inquiry justice had discharged the respondent on a charge of first degree murder, finding insufficient evidence of planning and deliberation.

The Court of Appeal held that the justice's sufficiency determination, even if arguably incorrect, did not constitute a jurisdictional error reviewable on certiorari.

The appeal was dismissed.