Leo S. Russomanno

The applicant brought a Charter application under ss. 8 and 24(2) to exclude evidence seized during the execution of search warrants at his residence and vehicles.

The warrants were based on information from confidential informants and police surveillance.

The court found that while there were sufficient grounds to issue the warrants for the vehicles, the information provided fell short of establishing a credibly based probability that drugs would be found in the residence.

The court concluded that the search of the residence violated s. 8 of the Charter.

Applying the s. 24(2) analysis, the court excluded the evidence seized from the residence, noting the serious impact on the applicant's privacy interests and the affiant's negligence in seeking a residential warrant on deficient grounds.

The accused, charged with ten firearm offences and one count of possession of cocaine, brought a Charter application seeking exclusion of a handgun and cocaine seized from him, alleging breaches of ss. 8, 9, and 10 of the Charter.

The court found the investigative detention was lawfully grounded in reasonable suspicion based on the totality of circumstances, including the officer's observation of a suspected drug transaction at a location of prior drug activity.

While a s. 10(b) breach was established due to a nearly two-minute delay in advising the accused of his right to counsel upon detention, the court declined to exclude the evidence under s. 24(2), finding the breach arose from a mistake rather than deliberate misconduct, had minimal impact on Charter-protected interests, and the reliable physical evidence was central to serious charges.

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.

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.

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.

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 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.

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.

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 applicant sought a review of a detention order on charges of robbery and failing to comply with a release order.

The court found a material change in circumstances based on the proposed surety's reduced work hours and the applicant's experience in custody during the COVID-19 pandemic.

Applying the Palmer criteria flexibly, the court admitted the fresh evidence and conducted a hearing de novo.

The court concluded that with two strong sureties and a GPS monitoring bracelet, the risk of re-offending or interfering with the administration of justice was sufficiently mitigated.

The applicant was granted bail on strict house arrest conditions.

During a trial for a home invasion and robbery, the accused applied to exclude photo lineup evidence under s. 24(2) of the Charter.

The accused's photo was included in the lineups based on information obtained from an unlawful search of his cellphone by police in an unrelated investigation.

The court applied the Grant framework and found that while the police misconduct was moderately serious, the evidence would have been discovered lawfully by another investigator.

The court concluded that admitting the evidence would better serve the truth-seeking function of the trial and dismissed the application.

The accused were charged with armed robbery, conspiracy, and related offences following a home invasion.

The Crown's case relied heavily on the testimony of an unsavoury witness who admitted to participating in the robbery and other crimes.

The court applied the Vetrovec warning, requiring corroboration for the witness's evidence.

Finding significant inconsistencies in the identification evidence and a lack of corroborating physical or circumstantial evidence linking the accused to the crime, the court concluded the Crown failed to prove the charges beyond a reasonable doubt.

Both accused were found not guilty.

The two accused were charged with multiple firearms and driving offences following a drive-by shooting and subsequent high-speed police chase.

The Crown's case relied heavily on circumstantial evidence, as the accused were arrested in the suspect vehicle shortly after the shooting, and gunshot residue was found on their hands.

The driver testified that two unknown passengers committed the shooting and fled the vehicle before the police stopped them.

The court rejected the accused's testimony, applying the W.(D.) and Villaroman frameworks, and found both accused guilty of the firearms offences and the driver guilty of the driving offences, but acquitted the driver of resisting arrest due to inconsistent police testimony.

The Crown and the accused brought six pre-trial motions relating to a joint trial for murder and accessory after the fact.

During the hearing, the accused Osman failed to appear, and the court found he had absconded under s. 475 of the Criminal Code, allowing the motions to proceed in his absence.

The court granted a consent order protecting the identities of three victim witnesses.

The court ruled that evidence of the accused's after-the-fact conduct, including flight and a subsequent meeting, was admissible for limited purposes.

Osman's s. 11(b) Charter application for unreasonable delay was dismissed, as the delay caused by the COVID-19 pandemic was reasonably mitigated by the Crown.

Khiar's s. 8 Charter application to exclude video surveillance obtained from his condominium's property manager without a warrant was dismissed, as he had a low expectation of privacy in the common areas.

Finally, the court admitted the expert opinion evidence of a forensic video analyst, subject to limitations on tracking and comparing clothing characteristics.

Following execution of a search warrant at a Kanata residence, police seized cocaine, crack cocaine, two loaded handguns, ammunition, a money counter, packaging materials, and cash.

The court applied constructive and joint possession principles under s. 4(3) of the Criminal Code and the circumstantial evidence framework to determine which occupant controlled the drugs and firearms found in separate bedrooms.

The court found both respondents jointly in possession of the drugs, but only one respondent in possession of each respective firearm found in his bedroom.

The cocaine was held to be possessed for the purpose of trafficking based on surveillance evidence, packaging materials, a scale, a buffing agent, loaded firearms, and a barricaded door, while the crack cocaine supported only simple possession.

The proceeds of crime allegation relating to $195.00 was not proven.

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.