Michael A. Hargadon

A young person appealed a conviction for uttering a threat to cause death under s. 264.1(1)(a) of the Criminal Code following a family dispute.

The appellant argued the trial judge failed to properly apply the credibility framework in R. v. W.(D.), improperly relied on demeanour evidence, and failed to adequately address conflicting testimony.

The appeal court held that the trial judge sufficiently explained why the defence evidence was rejected and properly assessed credibility, including considering motive to fabricate and the surrounding circumstances.

The court found no error in law or palpable and overriding error of fact and concluded the verdict was supported by the evidence.

The applicant sought certiorari quashing his committal for trial on second degree murder following a preliminary inquiry, arguing there was no evidence of the requisite mens rea beyond manslaughter.

Applying the narrow jurisdictional scope of certiorari review, the court held that committal may only be disturbed where there is no evidence on an essential element of the offence.

The court found that the circumstantial evidence, including the applicant's return with a knife, the force of the stabbing, the resulting fatal wound, and his conduct afterward, could reasonably support an inference of the mental element for murder.

The application was therefore dismissed.

The accused was tried on charges of criminal negligence causing bodily harm and unlawfully causing bodily harm after his off-leash dog bit an 11-year-old child in a park rink.

The court held the Crown failed to prove that taking the dog off leash in the enclosed rink, in the surrounding circumstances, constituted a marked and substantial departure from the conduct of a reasonably prudent person.

The evidence did not establish prior aggressive behaviour or facts supporting objective foreseeability of bodily harm.

The court also found the alleged breach of the Dog Owner's Liability Act was not shown to be objectively dangerous on these facts.

Acquittals were entered on both counts.

The accused brought a pre-trial motion to exclude cannabis and cannabis resin seized from his residence pursuant to a search warrant.

He argued the information to obtain failed to provide sufficient information about confidential informants' reliability and that the forced entry execution of the warrant was itself unreasonable under section 8 of the Charter.

Applying the governing search warrant review principles and the Supreme Court's section 8 jurisprudence on forced entry searches, the court held the warrant was validly issued and the police manner of entry was not shown to be excessive or unreasonable.

The application to exclude the evidence under section 24(2) was dismissed.

The applicant sought leave before trial to cross-examine the affiant on an information to obtain a search warrant, arguing insufficient disclosure regarding the credibility and reliability of confidential informants and an alleged failure of full, frank, and fair disclosure.

Applying the Garofoli and Pires framework, the court held there was no reasonable likelihood that the proposed cross-examination would assist in determining a material issue or tend to discredit a statutory precondition to issuance of the warrant.

The court found the information to obtain, read as a whole, disclosed reasonable and probable grounds and investigative necessity, notwithstanding that some informant information was not borne out by the search.

The application was dismissed.

The appellant appealed a summary conviction for sexual assault and breach of recognizance, arguing the trial judge failed to properly apply the credibility analysis required by R. v. W.(D.).

The appellate court held the trial judge improperly treated the case as a credibility contest between the complainant and the accused, rather than applying the full W.(D.) framework.

The reasons relied heavily on the complainant’s demeanour and failed to explain how the evidence as a whole established guilt beyond a reasonable doubt, particularly in light of inconclusive DNA evidence and other contradictory facts.

The court concluded this constituted a palpable and overriding error of law.

The conviction was quashed and a new trial ordered.