Graeme Leach

The Crown brought an application under s. 714.2 of the Criminal Code to allow the arresting officer in an 'over 80' trial to testify via video link from South Carolina, where he would be on a pre-planned vacation.

The defence opposed the application, arguing it would diminish the right to make full answer and defence and that the technology would impede cross-examination on exhibits.

The court granted the application, finding that the defence failed to show that receiving the evidence by video link would be contrary to the principles of fundamental justice, and set out minimal technical requirements for the testimony.

The applicants, charged with violence and neglect, sought to vacate their election for a judge-alone trial and re-elect for a judge and jury trial.

They argued their initial waiver of a jury trial was not validly informed and that the Crown's refusal to consent to re-election constituted an abuse of process.

The court found the initial election was voluntary and unequivocal, and that the applicants were sufficiently informed, having received some legal advice.

The court also determined that the Crown's refusal to consent did not meet the high threshold for abuse of process, as there was no prosecutorial misconduct that would shock the conscience of the community.

The application to re-elect was dismissed.

In a murder prosecution, the Crown sought leave under s. 9(2) of the Canada Evidence Act to cross-examine a Crown witness who was a co-accused and had previously given a videotaped statement pursuant to a plea agreement.

The defence argued the statement was unreliable because of pressure arising from plea negotiations, fear of sanctions, and an apparent inconsistency with surveillance evidence.

The court held that those concerns could be adequately addressed through cross-examination and found the videotaped statement to be a reliable record given under circumstances indicating the witness understood the importance of telling the truth.

Applying the ends of justice analysis, the court granted leave to cross-examine the witness on the inconsistent portion of the statement.

On a Crown application in a murder trial, the court considered whether preliminary inquiry testimony of an unavailable inmate witness could be admitted under s. 715(1) of the Criminal Code.

The court held that the Crown proved on a balance of probabilities that the witness was absent from Canada, largely through hearsay evidence with sufficient indicia of reliability.

However, the court exercised its discretion to exclude the evidence because admission would operate unfairly to the accused, given the centrality of credibility, the witness's potential motive to shift blame, significant internal and external inconsistencies, the availability of surveillance video never put to the witness, and new evidence arising after the preliminary hearing.

The Crown application was dismissed.

The accused moved for a directed verdict of acquittal at the close of the Crown's case on charges of second degree murder and the included offence of manslaughter arising from an inmate's suicide in custody.

The court interpreted s. 222(5)(c) of the Criminal Code, defined the elements of threat, fear of violence, and causation, and held there was some evidence on which a properly instructed jury could find that the moving party's conduct, including making and sending a noose, constituted a threat or contributed significantly to the victim's fear of violence and suicide.

Applying the directed verdict test and the circumstantial evidence framework, the court held the case should go to the jury on second degree murder and manslaughter.

The alternative theory that the moving party aided and abetted another inmate was removed from the jury for lack of evidence.