Leo S. Russomanno

The court considered whether the defence could cross-examine Constable Ali Sabeeh on prior negative judicial findings made against him in an unrelated case (R. v. Uniat) to challenge his credibility and establish a pattern of Charter breaches.

The court reviewed the legal framework for admitting such evidence, including the need for a high degree of similarity and a proper evidentiary foundation.

Ultimately, the court found that the prior findings in Uniat were of marginal relevance and that their prejudicial effect outweighed any probative value.

The application to cross-examine on those findings was dismissed, but the defence was permitted to explore the officer’s training on Charter issues.

The defence brought a motion for disclosure of emails exchanged between Crown counsel, asserting their relevance to a potential abuse of process application.

The accused had been convicted of second-degree murder.

The emails concerned prior disclosure of third-party suspect material to an alternate suspect (I.A.) who testified for the defence, which contradicted the Crown's cross-examination suggesting I.A. had no legitimate basis for his knowledge.

The court found the emails were subject to litigation privilege, which had not expired due to I.A.'s pending appeal.

After reviewing the emails, the court found no evidence of Crown misconduct, bad faith, or improper motives that would warrant disclosure under the "misconduct" exception to privilege.

The motion for disclosure was dismissed, but the emails were sealed for appellate review given the court's mistaken belief about its post-verdict jurisdiction for an abuse of process application in a jury trial, and concerns regarding unusual juror conduct.

This criminal trial addressed charges of possession for the purpose of trafficking and possession of proceeds of crime.

The accused challenged the manner of police entry into his residence, arguing it breached his s. 8 Charter right against unreasonable search and seizure.

The court found that the police's dynamic, no-knock entry was unjustified, as they failed to conduct an individualized assessment of risks (e.g., presence of a child, specific threat of weapons) and operated under a blanket assumption that dynamic entry is warranted in drug trafficking cases, which is contrary to established law.

This constituted serious police misconduct and a significant impact on the accused's privacy interests.

Applying the Grant test under s. 24(2) of the Charter, the court excluded the evidence obtained from the search, leading to acquittals on all remaining charges.

In a second-degree murder trial, the Crown sought to admit after-the-fact conduct evidence to establish the accused's state of mind regarding the defences of provocation and defence of another person.

The court ruled that while such evidence is generally admissible if relevant to state of mind, the specific conduct of the accused (jogging with a cup, smoking, changing hairstyle, leaving the scene) was too equivocal to support an inference about his state of mind at the time of the shooting.

Consequently, the evidence was deemed inadmissible for determining culpability or state of mind for murder, but remained admissible for the purpose of identifying the shooter.

This ruling addresses the admissibility of discreditable conduct evidence in a second-degree murder trial.

The Crown sought to introduce various pieces of evidence, including the accused's prior firearm possession, drug trafficking, and involvement in other incidents.

Initially, the court excluded most of this evidence, finding its prejudicial effect outweighed its probative value, particularly due to the risk of propensity-based reasoning.

However, the evidentiary landscape shifted when a defence witness indicated they would testify as the shooter.

This change rendered some previously excluded evidence, such as the accused's drug possession for trafficking and being shot, admissible as it became highly probative to rebut the defence's theory and establish the accused's motive to carry a firearm.

The court emphasized the dynamic nature of relevance and the balancing act between probative value and prejudicial effect, ultimately exercising its discretion to exclude certain evidence to ensure trial fairness and manageability.

The accused, charged with second-degree murder, sought to have the defence of provocation put to the jury.

The court first addressed the constitutionality of the July 2015 amendment to s. 232(2) of the Criminal Code, concurring with R. v. Mujber that the requirement of an indictable offence punishable by five or more years imprisonment violated s. 7 of the Charter and was of no force and effect.

The court then assessed whether there was an air of reality to the provocation defence, considering the four elements: wrongful act or insult, sufficiency to deprive an ordinary person of self-control, the accused acting in response, and acting suddenly before passion cooled.

Despite the accused denying being the shooter, the court found that, taking the defence evidence at its highest, a jury could reasonably infer the elements of provocation, including a wrongful act (brandishing a weapon at a friend) and a sudden reaction, influenced by the accused's recent shooting injury and age.

The defence of provocation was therefore left with the jury.

This ruling addresses whether the defence of "defence of another person" had an air of reality in a second-degree murder trial, meaning it should be put to the jury.

The accused, Donald Musselman, was charged with the murder of Markland Campbell.

The Crown argued against the air of reality, citing the accused's denial of being the shooter and potential inconsistency with a provocation defence.

The court found that despite the accused's denial, there was sufficient circumstantial evidence and reasonable inferences to support the three elements of self-defence (reasonable belief of threat, defensive purpose, reasonable response) to meet the evidential burden for an air of reality.

The judge emphasized resolving doubts in favour of leaving the defence to the jury and that inconsistent defences can both have an air of reality.

This ruling addresses the admissibility and scope of use for intercepted communications in a second-degree murder trial.

The accused, Donald Musselman, and a third-party witness, I.A., both testified that I.A. was the shooter.

The Crown sought to introduce intercepts to rebut this defence, arguing they undermined I.A.'s claim and suggested Musselman directed I.A. to falsely assume responsibility.

The court conducted a probative-prejudicial balancing analysis for numerous intercepts, admitting some for impeachment purposes only, while excluding others due to their highly prejudicial nature, including references to extrinsic criminal conduct and a criminal lifestyle.

The judge declined to admit the intercepts for the truth of their contents as admissions, exercising judicial discretion to ensure overall trial fairness and prevent propensity-based reasoning, given the volume of discreditable conduct evidence.

Donald Musselman was charged with second-degree murder.

The Crown sought to introduce wiretap intercepts as part of its case-in-chief to prove identification and rebut an alternate suspect defence.

The court ruled that the intercepts, while probative, carried significant risks of moral and reasoning prejudice if introduced early, especially given their content (extrinsic criminal behaviour, gang discussions, etc.) and the uncertainty of defence witnesses testifying.

The court initially denied their introduction as part of the Crown's case but allowed their use for cross-examination if the defence called I.A. or Musselman to testify that I.A. was the shooter, as this would crystallize their probative value.

The accused, charged with second-degree murder, brought a Corbett application to exclude certain prior convictions (unauthorized possession of a firearm and assault) from being used for credibility purposes during his testimony.

The court granted the application, finding that these convictions had limited probative value on credibility and posed a significant risk of propensity reasoning by the jury, outweighing their probative value.

The court noted that other convictions (failure to comply and possession for trafficking) and evidence of involvement in the drug subculture would still be admissible, preventing a distorted picture of the accused.

Ignace Kayiranga was convicted of unlawful act manslaughter following a judge and jury trial.

The Crown and defence jointly submitted a custodial sentence of 9.5 years, accounting for pre-trial custody.

The court accepted the joint submission, emphasizing denunciation, deterrence, and rehabilitation.

Aggravating factors included the victim's death, the brutality of the unprovoked attack, the offender's failure to assist, and a significant criminal record including a prior aggravated assault by stabbing.

Mitigating factors included the offender's complex trauma from the Rwandan genocide, his sincere remorse, and harsh conditions of pre-trial confinement.

The court recommended substance abuse and trauma counselling during incarceration.

The applicants, Jahmyle Johnson and Kyle Bancroft, sought to exclude evidence obtained from Johnson's cellphone through two police searches, arguing violations of their s. 8 Charter rights against unreasonable search and seizure.

The court found that the initial search by Officer Down, conducted under a CDSA warrant, unlawfully extended to browser history unrelated to the drug investigation, and his testimony regarding inadvertent discovery was not credible.

The subsequent search by Officer Fahey, based on the unlawfully obtained information and flawed legal advice, was also deemed unlawful.

Applying the R. v. Grant test, the court concluded that the seriousness of the Charter-infringing conduct, including police misconduct and reckless legal advice, outweighed society's interest in admitting the reliable evidence, as its admission would bring the administration of justice into disrepute.

The application to exclude the evidence was granted.

The applicants brought a Charter motion under s. 11(b) seeking a stay of proceedings due to unreasonable delay.

The total delay was 36 months and 6 days, with a net delay of 30 months and 28 days after accounting for defence delay, exceeding the 30-month presumptive ceiling set by R. v. Jordan.

The Crown argued the delay was justified by the COVID-19 pandemic as an exceptional circumstance.

The court found COVID-19 to be a discrete exceptional event and that the Crown and justice system took reasonable steps to mitigate the delay.

Consequently, the period of delay attributable to COVID-19 was subtracted, bringing the net delay below the presumptive ceiling.

The application for a stay of proceedings was dismissed.

The accused brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that her right to trial within a reasonable time had been violated.

The accused was charged with offences including trafficking in a Schedule II substance and firearm-related offences arising from a search warrant executed in March 2017.

The total delay from the swearing of the Information to the anticipated end of trial was 714 days (approximately 23 months and 12 days).

Applying the Jordan framework, the court calculated net delay of 600 days (20 months) after deducting defence delay.

The court found no exceptional circumstances, as the case was not particularly complex and there were no discrete events beyond the change of counsel.

The court granted the stay of proceedings.

Alexander Just was found guilty of two counts of production of cannabis marijuana and one count of possession for the purpose of trafficking.

The court considered aggravating factors including the large-scale commercial nature of the operation, the use of foreign workers, and the significant street value of the seized cannabis.

Mitigating factors included his status as a first offender, strong community support, good character, and rehabilitation prospects.

The Crown sought a 5-year sentence, while the defence proposed 12 months.

The court imposed a global sentence of 2 years in penitentiary, emphasizing deterrence and denunciation, and declined a probation order.

The accused was charged with possession of cannabis marijuana contrary to the Controlled Drugs and Substances Act, resisting arrest contrary to the Criminal Code, and possession of counterfeit currency contrary to the Criminal Code.

The trial proceeded by way of a blended voir-dire regarding Charter breaches.

The court found that the initial traffic stop lacked proper grounds, the arrest was unlawful and arbitrary, the warrantless search was unreasonable, the right to counsel was not properly implemented, and excessive force was used during the arrest.

All evidence was excluded pursuant to section 24(2) of the Charter, and the accused was acquitted on all counts.

The trial judge considered a bail application brought under Criminal Code section 523(2) by an accused who had been in custody for nearly two years awaiting trial.

The judge determined that section 523(2) is a bail review provision, not a bail hearing provision, and that the accused had never had an initial bail hearing.

The judge concluded that he lacked jurisdiction to conduct a de novo bail hearing under section 523(2) because that provision only applies where there is a prior order to vacate.

The judge declined to convert the hearing into a section 515 application, finding that a hearing conducted without jurisdiction is a nullity and cannot be reconstituted by agreement.

The judge directed the accused to pursue a section 515 bail application before another justice.

The three accused, Ashton Larmond, Carlos Larmond, and Suliman Mohamed, pleaded guilty to various terrorism-related offences and other charges.

Ashton Larmond pleaded guilty to knowingly instructing persons to enhance terrorist activity, Carlos Larmond to attempting to leave Canada for terrorist activity, and Suliman Mohamed to conspiring to enhance a terrorist group's ability.

The Larmond brothers also pleaded guilty to offences committed in custody, including threats to correctional officers and inmates, and unlawful communication.

The court accepted joint sentencing submissions, emphasizing the gravity of "home grown" terrorism and the importance of denunciation and deterrence.

N.K. was charged with nine counts of assault, including assault with a weapon, against her four children.

The trial involved testimony from the children and their father.

The court found significant evidence of collusion between the children and their father, and concerns that the allegations were exaggerated or part of a family law dispute strategy.

The youngest child's testimony revealed discussions among the children and father prior to and during the trial, including coaching and expressions of animus towards the mother.

The court found the father's testimony self-serving and unreliable.

Due to the combined effect of collusion and animus, the court was left with reasonable doubt regarding the children's evidence and found N.K. not guilty on all charges.

The accused was convicted of impaired driving causing bodily harm, failing to remain at the scene of an accident causing bodily harm, obstructing a peace officer, and breaching probation.

The offences arose from a collision between the accused's vehicle and a snowmobile operated by a 16-year-old victim, resulting in life-threatening injuries including internal organ damage, brain bleed, and multiple fractures.

The accused fled the scene without rendering assistance and subsequently lied to police.

The court imposed a global sentence of 44 months, with credit for 428 days of pretrial custody at a 1.5:1 ratio, resulting in a remaining sentence of 22 months and 20 days.

The court also imposed a lifetime driving prohibition and DNA order.