Jennifer Penman

The Crown sought to introduce evidence of the accused's prior discreditable conduct and hearsay ante-mortem statements of his deceased children in a trial for first-degree murder and other offences.

The accused cross-applied to sever an obstruct justice count relating to the earlier death of his son.

The court granted the severance application, finding the evidence surrounding the son's death highly prejudicial.

The court admitted some prior discreditable conduct evidence, including physical abuse and threats, as vital narrative and to show a pattern of abusive control.

Certain ante-mortem statements were also admitted under the state of mind hearsay exception, while others were excluded.

The accused applied for permission to sit at counsel table during a jury trial rather than in the prisoner’s dock, arguing that seating in the dock could undermine the presumption of innocence and hinder communication with counsel.

The court reviewed competing authorities concerning the placement of an accused in the courtroom and emphasized that the traditional position is the prisoner’s dock, subject to the trial judge’s discretion.

The court held that removal from the dock should occur only in exceptional circumstances where necessary to permit full answer and defence and where no security concerns exist.

As no such exceptional circumstances were demonstrated and the courtroom configuration would obscure the accused from the jury if seated behind counsel, the application was refused.

The accused applied during jury selection for an order excluding unsworn prospective jurors from the courtroom while challenge-for-cause questions concerning potential racial bias were asked.

The defence argued that exclusion was necessary to prevent prospective jurors from becoming "schooled" by hearing repeated challenges and tailoring their responses.

The court considered the interaction between the inherent jurisdiction to exclude jurors and the statutory regime in s. 640(2.1) and s. 640(2.2) of the Criminal Code, as interpreted in prior decisions.

Finding that the defence concern related to juror schooling rather than preserving impartiality between the Crown and the accused, the court followed the approach in Sandham and exercised its discretion to exclude unsworn jurors while permitting rotating triers.

The accused, charged with the first-degree murder of his daughter, brought a pre-trial application to exclude expert opinion evidence suggesting starvation as a possible cause of death.

The accused argued the Crown provided late notice of this theory and that the underlying estimates of the victim's pre-death weight lacked scientific validity.

The court dismissed the application, finding that late notice did not warrant exclusion given the time remaining before trial, and that the experts' estimates, based on specialized experience rather than strict scientific testing, met the threshold reliability required for admissibility.

The Crown sought to admit statements made by the accused to police during his transport and subsequent interview regarding the death of his daughter.

The accused argued the statements were involuntary and obtained in breach of his ss. 7 and 10(b) Charter rights.

The Superior Court of Justice found the transport utterances inadmissible because the accused was not informed he was a murder suspect, vitiating his right to make an informed choice to remain silent.

While the station interview did not violate s. 10(b), the court excluded it under its residual discretion, finding its prejudicial effect outweighed its probative value due to the accused's repeated requests for counsel and the lack of inculpatory responses to police theorizing.

The offender was sentenced following convictions for multiple drug trafficking offences involving large quantities of MDMA, methamphetamine, heroin, ketamine, and marijuana, as well as firearm offences including possession of a loaded handgun, unlawful storage, and possession while prohibited.

Police executing a search warrant discovered approximately 39,000 individual drug doses valued at about $675,000, drug trafficking paraphernalia, cash proceeds, and a loaded firearm with ammunition in plain view.

The court emphasized denunciation and deterrence for serious drug trafficking and firearm possession offences.

Applying principles of proportionality, consecutive and concurrent sentencing, and the totality principle, the court imposed a global sentence of seven years' imprisonment.

After credit for pre-sentence custody at a 2:1 rate and credit for a related prior sentence, the net remaining sentence was 39 months.

The accused was charged with multiple offences including possession of drugs for the purpose of trafficking and possession of a loaded firearm after police executed a search warrant at an apartment.

The accused argued he did not have possession of the items as he had been kicked out of the apartment by the lessee a week prior.

The court found that circumstantial evidence, including the accused's ongoing access, personal belongings, and statements to undercover officers, proved beyond a reasonable doubt that he had knowledge and a measure of control over the illicit items.

The accused was found guilty on all counts.

The accused, charged with multiple drug and firearms offences, brought a motion to invalidate a search warrant and exclude evidence under sections 8 and 24(2) of the Charter.

The accused argued that the Information to Obtain (ITO) contained material errors and misleading statements, and that a dynamic, unannounced entry was unjustified.

The court found that despite minor errors, the ITO contained sufficient reliable evidence to justify the issuance of the warrant, including undercover drug purchases and observations linking the accused to the searched apartment.

The court concluded there was no section 8 Charter breach, and alternatively, that the evidence should not be excluded under section 24(2) as the police acted in good faith and the evidence was highly reliable.

The application was dismissed.

The applicant, charged with sexual assault and other offences, sought a stay of proceedings under s. 24(1) of the Charter due to the police's failure to retain a 2007 videotaped statement made by the complainant.

The court found that the Crown failed to establish that the loss of the video was not due to unacceptable negligence.

Given that the complainant's credibility was the central issue and she had a history of recantations and perjury, the loss of the video irreparably prejudiced the applicant's ability to make full answer and defence.

The court concluded this was one of the clearest of cases and ordered a stay of proceedings on the sexual assault count.

The accused brought a Charter application seeking exclusion of evidence discovered on his laptop during a police investigation initially framed as theft of telecommunications.

Police had detained the accused while he was using a laptop in a parked vehicle and seized the computer without lawful authority, later obtaining search warrants.

The court found multiple breaches of ss. 8, 9, 10(a), and 10(b) of the Charter, including unlawful seizure of the laptop, delayed access to counsel, failure to re‑advise rights when the investigative focus shifted to child pornography, and execution of a search warrant months outside the authorized time period.

The court also found the warrant application contained irrelevant criminal history and that the investigation into telecommunications theft was used as a pretext to search for sexual offences.

Applying the s.24(2) analysis, the court held that the state conduct was serious and the privacy intrusion significant, warranting exclusion of the computer evidence.

The applicant, charged with importing heroin, applied to exclude intercepted telephone communications on the basis that the wiretap authorizations breached his s. 8 Charter rights.

The first authorization targeted an airport employee suspected of drug smuggling, based largely on a confidential informant's tip.

The court found the first authorization valid, applying the Debot factors.

The second authorization named the applicant as a 'known person' after his calls with the primary target were intercepted.

Relying on the recent Court of Appeal decision in Mahal, the court held that the standard for intercepting a known person's communications is whether it 'may assist the investigation', which was met here.

The application to exclude the evidence was dismissed.