Thomas Balka

In a judge-alone first-degree murder trial, the Crown sought to admit discreditable conduct evidence from former sexual partners, acquaintances, and material found on the accused's electronic devices to support an inference of violent sexual propensity relevant to the alleged murder during sexual assault or unlawful confinement.

Applying the similar fact evidence framework, the court held that the proposed evidence showed, at most, an interest in BDSM activities including choking, with significant consensual components, and did not establish a specific propensity to engage in non-consensual violent sexual conduct as alleged.

The court found the inferential chain from prior consensual or mixed sexual practices to the charged non-consensual homicidal conduct was logically flawed and insufficiently probative of the actus reus of first-degree murder.

The application was dismissed, and the court added that any limited probative value would in any event have been outweighed by prejudice through distraction from the core trial issues.

The accused, charged with two counts of first-degree murder, brought multiple Charter applications seeking the exclusion of evidence.

He alleged violations of his s. 10(b) right to counsel regarding initial utterances to police, his s. 9 right against arbitrary detention regarding his arrest for one of the murders, and his s. 8 right against unreasonable search and seizure regarding the forensic re-testing of a seized knife and freezer, as well as the use of a general warrant to obtain Google data.

The court dismissed all applications, finding no Charter breaches.

The court held the accused was not detained prior to his arrest, the police had reasonable and probable grounds for the arrest, no residual privacy interest remained in the lawfully seized physical items, and the general warrant was appropriately issued.

Several accused brought Garofoli applications seeking exclusion of evidence obtained through multiple Part VI wiretap authorizations in a large drug trafficking investigation.

They argued the affidavits failed to establish reasonable and probable grounds and improperly named them as known parties under s. 185(1)(e) of the Criminal Code.

The court held that one authorization related to a homicide investigation lacked sufficient grounds on the edited record and therefore violated s. 8 of the Charter; intercepted room‑probe communications from a residence were excluded under s. 24(2).

However, the court found that the principal drug trafficking wiretap authorizations were supported by reasonable grounds based on confidential informant information, surveillance, phone records, and associations among targets.

Applications to exclude evidence obtained under those authorizations were dismissed.

The applicants brought a preliminary motion in advance of a Garofoli application seeking excision of all references to a vehicle stop and resulting seizures that had previously been found to violate Charter rights.

The impugned events were relied upon in affidavits supporting Part VI wiretap authorizations, a production order for subscriber records, and search warrants for cellular phone contents.

The Crown argued that the applicants lacked standing to seek excision of evidence obtained in violation of third parties’ Charter rights.

The court held that where illegally obtained evidence forms part of the grounds for authorizations affecting the applicants’ privacy interests, the applicants are entitled to challenge the legality of that evidence and seek its removal from the supporting materials.

All references to the unlawful vehicle stop, arrests, and seizures were ordered excised from the affidavits and informations to obtain.

The applicants, charged with drug-related offences, brought a Section 8 Charter application to exclude evidence obtained from Dialled Number Recorder and tracking warrants.

They argued the Information to Obtain (ITO) was deficient due to unconfirmed confidential informant tips, tainted informant pools from police misconduct, and material non-disclosure by the affiant.

The court strongly condemned the egregious conduct of one officer and the sloppiness of the affiant in failing to disclose relevant police reports.

However, after excising inaccuracies and reading in omissions, the court found the remaining reliable information still provided reasonable grounds to suspect the applicant was trafficking drugs.

The application to exclude evidence was dismissed.