David Berg

During a murder trial, the accused brought a mid-trial application to admit an additional portion of a deceased witness's video-recorded statement under the principled exception to the hearsay rule.

The Crown opposed the admission.

The court found that while necessity was established, the statement lacked threshold reliability due to unmitigated hearsay dangers related to perception and narration.

The application was dismissed and the evidence was ruled inadmissible.

The applicant applied to reopen and reconsider a prior ruling that his post-arrest confession to two murders was voluntary.

The application was based on the subsequent exclusion of internet search queries under s. 24(2) of the Charter, which had been put to the applicant during his police interview.

The court dismissed the application, finding no material change in circumstances because the police acted in good faith using a presumptively valid warrant at the time of the interview.

The court concluded that the subsequent inadmissibility of the evidence did not render the police conduct oppressive or affect the voluntariness of the statement.

The applicants brought a pre-trial application to excise certain passages from transcripts of intercepted private communications, arguing the audio was inaudible and the transcripts would prejudice the jury.

The court dismissed the application, applying established law that the audio recordings are the evidence and the jury may use the transcripts as an aid.

The court found that the jury, properly instructed, could resolve disputes about the accuracy of the transcripts by listening to the recordings and considering cross-examination.

The co-accused applied to sever a second-degree murder count from two first-degree murder counts on the same indictment.

The co-accused argued that the stronger evidence on the first two counts, including a confession, would cause moral and reasoning prejudice on the third count, where the cause of death was disputed.

The court dismissed the application, finding a strong factual and legal nexus between the counts, as all three deceased were members of the same family involved in an ongoing child custody dispute.

The court also found that count-to-count similar fact evidence was likely admissible to prove identity, and that the interests of justice, including avoiding a multiplicity of proceedings, favoured a joint trial.

The applicants, charged with first-degree murder, brought an omnibus motion under s. 24(2) of the Charter to exclude three categories of evidence obtained through various s. 8 Charter breaches: a PDF of a lock found on a cellphone, banking records, and internet search queries found on a laptop.

The court applied the Grant framework to each category.

The court admitted the PDF evidence, finding the police acted in good faith and the breach was at the lower end of the seriousness scale.

The court excluded the banking records, finding the production order was overbroad and based on a misleading Information to Obtain (ITO).

The court also excluded the internet search queries, finding a pattern of police misconduct, including misleading testimony, alteration of investigative records, and failure to disclose unauthorized access to the applicants' email accounts, which severely impacted the applicants' Charter-protected interests and would bring the administration of justice into disrepute if admitted.

The accused, charged with first-degree murder, challenged the admissibility of his 15-hour post-arrest video-recorded statement to police.

He alleged violations of his s. 10(b) right to counsel, his s. 7 right to silence, and argued the confession was involuntary due to police oppression and inducements regarding his common-law spouse and children.

The court found no s. 10(b) breach, as the accused accepted duty counsel advice without requesting a specific lawyer.

Applying the Oickle framework, the court held the confession was voluntary beyond a reasonable doubt.

The police did not offer a quid pro quo or overbear the accused's will; rather, the accused made a calculated choice to confess in hopes of assisting his spouse, a motive that was largely self-generated.

The statement was ruled admissible.

The applicants, charged with first-degree murder, brought a preliminary screening motion to determine whether they could adduce evidence of additional alleged Charter violations on their upcoming s. 24(2) application.

They sought to introduce evidence of violations of third parties' rights, other violations of their own rights, and unconstitutional police practices in unrelated investigations to establish a 'pattern of abuse' under Grant.

The court held the applicants lacked standing to assert third-party rights and rejected evidence of unrelated police practices.

For the applicants' own rights, the court permitted evidence of additional violations only where they met the Goldhart nexus test or had sufficient probative value to demonstrate a pattern of abuse without consuming disproportionate judicial resources.

The applicants, charged with first-degree murder, brought a Charter application alleging s. 8 violations regarding the search of a trailer on their property and the subsequent warrantless seizure and technological examination of laptops and USB drives found inside.

The court held that the initial search of the trailer was lawfully executed because police took control of the premises within the time specified in the warrant.

The warrantless seizure of the electronic devices was justified under s. 489 of the Criminal Code as the officers had reasonable grounds to believe they would afford evidence.

However, the court found s. 8 violations occurred when an officer conducted a warrantless preview of a USB drive, when the subsequent search warrant failed to authorize a technological examination, and when detention orders were improperly extended.

The applicants, charged with first-degree murder, brought an application to exclude evidence obtained by police from Walmart and CIBC.

The police obtained CCTV footage and a transaction receipt from Walmart without a warrant, and basic account information from CIBC prior to obtaining a production order.

The court found the applicants had no reasonable expectation of privacy in the CCTV footage, the transaction receipt, or the limited banking information provided to police.

However, the court found the subsequent production order issued to CIBC was overbroad and invalid.

The court declined to sever the valid portions of the production order, concluding that the records produced by CIBC were obtained in violation of s. 8 of the Charter.

The accused, charged with first-degree murder, brought a pre-trial motion to exclude evidence obtained from a cell phone seized from one of the accused without a warrant during a police interview.

The accused alleged violations of ss. 8 and 10(b) of the Charter.

The court found that the accused was not detained during the interview, so s. 10(b) was not violated.

The warrantless seizure of the cell phone was lawful under s. 487.11 of the Criminal Code due to exigent circumstances.

The court also held that the accused lacked standing to challenge searches of the deceased's cell phone and email, and had no reasonable expectation of privacy in basic subscriber information.

However, the court found that the search warrant subsequently obtained to examine the contents of the seized cell phone was facially invalid because it did not authorize a technological search, resulting in a s. 8 violation.

The court concluded that the Information to Obtain (ITO) was sufficient to have supported a proper warrant.

The determination of whether to exclude the evidence under s. 24(2) was deferred.

The applicants brought a motion to exclude evidence obtained from a warrantless seizure of their garbage, which included items containing DNA evidence.

The applicants argued they had a reasonable expectation of privacy in the garbage and, alternatively, in the DNA information embedded on the items.

Applying the totality of the circumstances test, the court found that the applicants had abandoned the garbage by placing it out for municipal collection.

The court further held that the abandonment of the garbage effectively constituted the abandonment of any privacy interest in the DNA information it contained.

The application to exclude the evidence under section 8 of the Charter was dismissed.

In a voir dire during a first-degree murder trial, the court considered the admissibility of several pre-arrest statements made by the two accused to police.

The defence argued the statements were involuntary because the accused were suspects and should have been given a primary caution, and that police used trickery by telling them they were not suspects.

The court found that the accused were not suspects at the time of the interviews based on the objective standard of reasonable suspicion.

The court held that even if they were suspects, the statements were voluntary beyond a reasonable doubt, as there were no threats, promises, or oppressive circumstances, and the accused had operating minds.

The court also rejected arguments that section 7 of the Charter was violated, noting it does not apply prior to detention.

All pre-arrest statements were ruled admissible.

The Crown sought to admit ante-mortem statements made by two deceased victims in a first-degree murder trial.

The statements were evaluated under the principled exception to the hearsay rule.

The court ruled that three statements made by one victim were inadmissible because necessity was not established, as better quality evidence was available, and their prejudicial effect outweighed their probative value.

However, a statement made by the second victim was ruled admissible, as it met the requirements of necessity and threshold reliability without undue prejudicial effect.