Lindsay Board

During jury selection for a second-degree murder trial, the accused requested the trial judge use the expanded stand-by power under s. 633 of the Criminal Code to ensure at least one Black juror was selected.

The Crown opposed the request.

The trial judge conducted a detailed analysis of the legislative history and conflicting jurisprudence regarding s. 633.

The court concluded that while s. 633 can be used to enhance jury diversity to maintain public confidence in the administration of justice, the specific grounds advanced by the defence—that a Black juror could help others understand cultural norms—did not constitute reasonable cause.

The request was denied.

This ruling addresses a constitutional challenge to the statutory scheme for introducing defence-held records in criminal trials, specifically under s. 278.92 of the Criminal Code.

The applicant, a young person charged with sexual assault, argued that the definition of "record" was overly broad and that the disclosure and complainant participation requirements violated their ss. 7 and 11(d) Charter rights.

The court dismissed the constitutional challenge, determining that electronic communications between the accused and complainant (unless containing s. 276(1) content) and material already disclosed by the Crown with complainant consent are not "records" for s. 278.92 purposes.

The court also clarified that the complainant's participatory rights at s. 278.94 hearings are limited to making submissions, without cross-examination or adducing evidence.

The accused, a Black man charged with second-degree murder, brought an application to challenge prospective jurors for cause based on anti-Black racism.

The court determined the specific anti-bias instructions and questions to be posed to the jury panel.

The court also ruled that, under the new legislative regime, the trial judge rather than defence counsel would ask the challenge for cause questions to preserve objective neutrality and underscore the court's commitment to an impartial jury.

The Crown appealed the acquittal of the respondent on sexual assault charges.

The trial judge had found both the complainant and the respondent credible but had a reasonable doubt, partly due to the complainant's inability to explain her entry into an abandoned trailer and her communication with her father after the alleged assault.

The Court of Appeal found that the trial judge erred in law by applying stereotypical views about sexual assault victims' behavior, specifically by inferring consent from the complainant's entry into the trailer and by judging her credibility based on her communication with her father.

The court also found an error in the exclusion of the complainant's prior consistent statement and demeanour evidence to her friend.

The appeal was allowed, and a new trial was ordered, as these errors had a material bearing on the acquittal.

The accused was charged with impaired driving and dangerous driving causing death following a motor vehicle collision.

This pre-trial motion addressed the admissibility of evidence obtained during the police investigation.

The court found multiple Charter violations including unlawful detention without rights advisement, compelled statements in violation of section 7 rights, unlawful arrest and breath demand, unlawful vehicle seizure without reasonable grounds, and unlawful seizure of blood samples and airbag data.

The court determined that the investigation was fundamentally flawed from its inception, with police taking investigative shortcuts that resulted in evidence being unlawfully obtained.

The court found that evidence obtained in violation of the Charter could not be relied upon to lawfully seize other evidence, rendering subsequent warranted seizures unlawful as well.

The appellant appealed her conviction for driving with a blood alcohol level over 80 mg/100 ml.

She argued the trial judge erred in finding the roadside screening demand was made forthwith, the breath samples were taken as soon as practicable, and her s. 10(b) Charter right to counsel was not breached.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the six-minute delay for the roadside demand was justified, the 1 hour and 45-minute delay for the breath samples was reasonable, and the appellant had a fulsome opportunity to consult with duty counsel.

The appellant was convicted of possessing and accessing child pornography.

The sole issue at trial was the defence of legitimate educational purpose under s. 163.1(6) of the Criminal Code.

The trial judge rejected this defence, finding the appellant's evidence not credible and lacking an objective connection to an educational purpose, and also found an undue risk of harm to minors.

On appeal, the appellant challenged the trial judge's decision to allow Crown reply evidence, the assessment of the educational purpose's merit, and the finding of undue risk of harm.

The appeal court dismissed the appeal, affirming the trial judge's findings on the admissibility of reply evidence and the lack of a legitimate educational purpose.

R.D. appealed his conviction for sexual interference, sexual assault, and uttering threats, citing deficiencies in the jury charge and an unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The Crown cross-appealed the sentence, arguing the trial judge erred in not applying an aggravating factor related to a position of trust.

The Court of Appeal dismissed both R.D.'s conviction appeal, finding the jury charge adequate and the delay not unreasonable, and the Crown's sentence appeal, upholding the trial judge's finding that a position of trust was not established in the particular circumstances.

The court determined costs for contempt proceedings initiated by Atif Kamran against Dan Andersson and LEO Canada Inc. While Kamran succeeded in having Andersson found in contempt for some breaches, Andersson successfully purged his contempt and resisted many of Kamran's requested penalties.

The court found success was divided, and Kamran's approach to the penalty phase was overly aggressive.

No costs were awarded to LEO Canada Inc. or Geraldine Aquino.

The court awarded Atif Kamran $40,000 in all-inclusive costs from Dan Andersson, on a partial indemnity basis, and dismissed Andersson's cross-motion for costs.