Lisa Miles

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 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.

In a voir dire during a first-degree murder trial, the defence challenged the admissibility of the accused's utterances upon arrest and his formal police statement, alleging breaches of s. 10(b) of the Charter and lack of voluntariness.

The court found that a five-minute delay in providing the right to counsel upon arrest was justified by specific officer and public safety concerns.

The court also held that the accused's spontaneous utterances and his subsequent formal statement to police were voluntary beyond a reasonable doubt, despite the accused being a youthful Indigenous offender and the interviewing officer making ambiguous comments about the accused's integrity and future prospects.

The applicant, charged with first-degree murder, sought to exclude evidence of his criminal record (including sexual assault and assault causing bodily harm) and to redact references to these convictions from an expert's forensic psychiatry report.

The court denied the application, finding that while the convictions were prejudicial, they formed a vital basis for the expert's opinion, particularly regarding potential antisocial conduct disorder or sexual paraphilia.

The court emphasized that the jury must have access to the full foundation of expert evidence to assess its weight, even considering Gladue principles for Indigenous accused.

The accused, charged with second degree murder, brought an application to adduce evidence of a known third-party suspect.

The Crown opposed, arguing there was no air of reality to the proposed evidence.

The court applied the sufficient connection test and found that, taking the proposed evidence at its highest, there was an air of reality linking the third party to the shooting.

The application was granted, allowing the defence to cross-examine Crown witnesses and lead evidence regarding the alternative suspect.

This ruling addresses the admissibility of a statement provided by the accused, Donald Musselman, to police, who is charged with second-degree murder.

The defence challenged the statement's voluntariness and alleged breaches of Charter rights.

The court found that the interviewing officer undermined the accused's right to silence by suggesting his credibility would be diminished if he did not speak to police and later testified at trial.

Consequently, the statement was not proven voluntary beyond a reasonable doubt and was excluded from evidence.

This decision concerns a new trial to determine if the accused, René Goudreau, was not criminally responsible (NCR) by reason of mental disorder for the first-degree murder of his mother.

The accused had previously been convicted by a jury, but the Ontario Court of Appeal ordered a new trial solely on the NCR issue.

The court considered expert psychiatric evidence, the accused's behaviour before and after the offence, and evidence of extensive planning related to life insurance policies on the victim.

Despite evidence of mental disorder, the court found that the accused failed to prove on a balance of probabilities that he was incapable of appreciating the nature and quality of his acts or knowing they were wrong.

The court concluded that the accused engaged in detailed planning for financial gain and acted rationally in many aspects, tipping the scales against an NCR finding.

Application by defendant Jasmyn Jarrett to join a trial already in progress after she failed to appear on the first day.

The defendant had been arrested on a bench warrant and sought retroactive permission to participate in the trial, having missed the first five days of evidence.

The Crown opposed the application, arguing that the trial had effectively been severed when the Crown proceeded against the three remaining defendants.

The court dismissed the application, finding that the Crown has discretion to proceed with co-accused and that allowing the defendant to join retroactively would prejudice the other defendants' right to a timely trial and would require the Crown to have led evidence differently.

The accused was found guilty of obstructing a peace officer after concealing his involvement in a fatal collision between his pickup truck and a cyclist.

The accused repaired his vehicle and hid from police for several days out of fear.

The court weighed the devastating impact on the victim's family against the accused's lack of criminal record, genuine remorse, and otherwise positive character.

The court imposed a 12-month conditional sentence, including a curfew and 100 hours of community service.

The defendant brought a Stage 2 application for third-party production of the complainant's medical records in a sexual assault case.

The court reviewed thousands of pages of records from three hospitals.

While most documents were deemed irrelevant and highly confidential, specific portions (Exhibits A-2, B-2, C-2) were found to contain information relevant to trial issues, such as the complainant's suppressed memory, reported abuse, and anxiety related to testifying.

Applying the principles from R. v. Mills, the court ordered these specific exhibits to be produced to the defendant's counsel for review, with the client permitted to read but not copy them, to ensure the defendant's right to make full answer and defence.

The remaining records were sealed.

The accused, Deinsberg St. Hilaire, was charged with dangerous driving causing death, failure to stop at the scene of an accident causing death, and obstruction of a peace officer.

He pleaded guilty to obstruction but not guilty to the other two.

The charges arose from a collision where his pickup truck struck and killed a cyclist on the paved shoulder of Leitrim Road.

The court found the Crown failed to prove beyond a reasonable doubt the *actus reus* and *mens rea* for dangerous driving, specifically that the driving constituted a 'marked departure' from the standard of care or that the accused knew or ought to have known he was too tired to drive.

For the failure to stop charge, the court found reasonable doubt as to whether the accused knew or was wilfully blind to having struck a person.

Consequently, St. Hilaire was found not guilty of dangerous driving causing death and failure to stop, but guilty of obstruction of a peace officer.

The Crown sought to admit similar fact evidence of the defendant's discreditable non-charged conduct against his other children in a judge-alone trial for sexual assault and assault charges.

The defendant opposed, arguing the evidence was too prejudicial and dissimilar.

The court applied the R. v. Handy framework, finding the evidence relevant to the complainant's credibility, actus reus, and to rebut anticipated defences of recent fabrication and failure to report.

The court admitted the similar fact evidence with restrictions, excluding testimony regarding the use of a pellet gun, frying pan, and paddle, and limiting it to physical assaults (hands, feet, belts) by witnesses who would testify, to safeguard the defendant's right to a fair trial while acknowledging the reduced prejudice in a judge-alone setting.

The accused, Curtis Rading, pleaded guilty to four offences: break and enter of a dwelling house and sexual assault, robbery, uttering threats to cause bodily harm, and a second sexual assault, all committed against an 84-year-old neighbour.

The court considered aggravating factors including the planned nature of the home invasion and sexual assault, the victim's vulnerability, and the accused's criminal record and substance abuse issues.

Mitigating factors included the guilty pleas, the accused's age, and his desire for treatment.

The primary sentencing objectives were protection of society, denunciation, and general and specific deterrence.

The court rejected the defence's request for a total sentence of approximately five years as too low and imposed a total custodial sentence of nine years, less 1235 days of pre-sentence custody credit, leaving approximately 5.62 years to serve.

Concurrent sentences were imposed for the other charges.

Mandatory corollary orders included a DNA order, a lifetime weapons prohibition, lifetime Sex Offender Information Registration, and a non-communication order.

Sentencing for eight counts of sexual interference against underage girls who were friends of the accused's daughter and attended sleepovers at his home, together with a guilty plea to breach of recognizance.

The court emphasized denunciation and deterrence, treated the number and age of the victims, grooming conduct, prolonged abuse, and abuse of authority as serious aggravating factors, and considered the absence of a prior record, medical issues, non-violent conduct, and lengthy stringent bail conditions as mitigating factors.

Applying the case law on credit for onerous bail, the court granted eight and a half months' credit in addition to pretrial custody credit.

A custodial sentence of 27 months concurrent on each sexual interference count, equivalent to a 36-month global sentence before credit, plus one month concurrent on the breach, was imposed along with mandatory and discretionary ancillary orders.