Michael Carnegie

The applicant, a lawyer charged with attempting to obstruct justice and perjury, sought production of third-party records held by the Public Prosecution Service of Canada (PPSC).

The charges arose from her alleged representations about possessing a video recording of a police officer stealing money during a search.

The applicant sought records from three PPSC counsel.

The court applied the first stage of the O'Connor test and found that the records of two PPSC counsel were likely relevant to the charges, ordering them produced for judicial inspection.

The application for records from the third counsel was dismissed without prejudice.

The appellant appealed a sentence imposed following conviction for assault causing bodily harm, arguing that the sentencing judge erred by refusing to grant a conditional discharge and instead imposing a 30‑day conditional sentence.

The appellant contended that the sentencing judge used conclusory reasoning and failed to properly weigh mitigating factors including exemplary character, loss of employment, and significant collateral consequences.

The court held that the sentencing judge properly considered all mitigating and aggravating factors and appropriately emphasized denunciation and deterrence given the abuse of authority and breach of trust by a custodial officer against a prisoner.

Applying the deferential standard for appellate review of sentence, the court found no error in principle and no basis to conclude the sentence was demonstrably unfit.

The applicants, charged with first-degree murder, brought an application for a change of venue under s. 599 of the Criminal Code.

They argued that a fair trial in Sarnia was impossible due to the small community size, extensive pre-trial publicity regarding their alleged sexual practices, the overwhelming community response to the victim's death, the victim's father's employment at the local courthouse, and inadequate courthouse facilities.

The court granted the application, finding that the cumulative effect of these factors created a reasonable probability of prejudice and impacted the applicants' fair trial rights.

The Crown applied to remove defence counsel due to a conflict of interest after the same lawyer had represented both an accused and a key Crown witness who later provided incriminating statements.

The accused sought a stay of proceedings or exclusion of the witness’s evidence under ss. 7 and 11(d) of the Charter, arguing police inducements and delayed disclosure compromised their fair trial rights.

The court found that while police comments undermining the witness’s confidence in her lawyer were inappropriate, the accused could not rely on alleged Charter breaches affecting the witness, and no actual prejudice to their ability to make full answer and defence was established.

The court declined to grant a stay or exclude the witness’s evidence but held the conflict required removal of counsel.

The accused would need to obtain new counsel and a new trial date.

During a murder trial, the court held a pre-charge conference to discuss the jury instructions regarding an unsavoury witness who had confessed to killing the victim.

The draft charge included a Vetrovec warning and a list of independent supportive evidence.

Defence counsel argued that the extensive list of supportive evidence nullified the warning and made a tactical request to omit the Vetrovec warning entirely.

Applying the Supreme Court's decision in Brooks, the court held that a Vetrovec warning is discretionary and should not be imposed when it would prejudice the accused's case by highlighting corroborative evidence.

The court deferred to defence counsel's tactical decision and omitted the warning from the charge.

The Crown brought a motion seeking rulings on the admissibility of two statements made by the accused to police, one given before arrest and another during a custodial interrogation following arrest for murder.

The court considered whether the statements were voluntary under the common law confessions rule and the contextual framework established in R. v. Oickle.

The pre‑arrest statement was found voluntary because the accused was not yet a suspect and the interview occurred in a non‑oppressive setting without threats, inducements, or trickery.

The post‑arrest interview, conducted using the Reid technique and involving persistent questioning, was also found voluntary because the accused maintained control of the conversation, repeatedly asserted his right to silence, and made no incriminating admissions.

The court ruled the first statement admissible and held the second voluntary but deferred final probative‑prejudice determinations regarding its use at trial.

In a murder prosecution, the Crown brought a motion to admit graphic post‑mortem photographs of the deceased child to be used during the testimony of a forensic pathologist.

The court applied the common law balancing test governing the admissibility of graphic evidence, weighing probative value against prejudicial effect.

One photograph depicting the body in its original position was found to have significant probative value in illustrating the condition of the remains, corroborating witness testimony, and assisting the jury in assessing the forensic expert’s conclusions.

A second photograph was largely redundant and risked undue prejudice due to the exposure of the genital area, particularly given allegations of sexual assault.

The court admitted the first photograph but excluded the second, subject to reconsideration depending on the course of cross‑examination.

The court determined the admissibility of electronic evidence in a criminal prosecution involving serious violent offences.

Following an earlier ruling excluding evidence obtained from searches of the accused’s laptop and Blackberry under s. 24(2) of the Charter, most electronic evidence became inadmissible.

The remaining issue concerned the admissibility of a Facebook profile message obtained through a Mutual Legal Assistance Treaty request to Facebook’s headquarters in the United States.

The accused argued the statement lacked contextual meaning and relied on jurisprudence excluding ambiguous overheard statements.

The court distinguished those authorities, finding the social media post represented a complete statement intentionally communicated by the accused on his profile and was therefore highly probative with no unfair prejudice.