L. Shemesh

The Crown applied to quash a subpoena issued by the respondent to an assistant Crown attorney.

The respondent, who was facing murder charges, sought to compel the prosecutor to testify at a hearing regarding alleged prosecutorial misconduct, after a witness claimed the prosecutor had coached him to change his evidence.

The court granted the application to quash the subpoena, finding that the respondent failed to meet the stringent test of demonstrating that the prosecutor's evidence was necessary, as another police officer was present during the relevant meetings and could testify to the events.

The accused was found guilty of manslaughter by a jury after fatally stabbing an unarmed, inebriated victim.

The jury rejected the accused's claim of self-defence.

The sentencing judge found that the accused had a safe avenue of escape and used excessive force, but noted mitigating factors including the accused's youth, lack of prior record, remorse, and an element of provocation by the victim.

The accused was sentenced to 6 years' imprisonment, less credit for pre-trial custody.

The Crown applied for an order quashing a preliminary inquiry judge's discharge of the respondent on drug possession charges and seeking mandamus to commit him to trial.

The Crown argued the preliminary inquiry judge committed jurisdictional error by improperly weighing circumstantial evidence and failing to consider the whole of the evidence regarding the respondent's knowledge and control of drugs found in a condominium.

The Superior Court dismissed the application, finding that the preliminary inquiry judge properly applied the test for committal and that any error made was regarding the sufficiency of the evidence, which falls within her jurisdiction and is not subject to certiorari.

During a murder trial, the defence applied for a mistrial based on alleged misrepresentations and misstatements made by the Crown in its closing address to the jury.

The defence argued that the Crown's comments regarding DNA evidence, witness immunity, and the accused's testimony fatally wounded the trial process.

The court reviewed the eight alleged errors and concluded that while some statements were inaccurate or lacked an evidentiary basis, they did not individually or cumulatively constitute a fatal wounding of the trial process.

The court dismissed the application, finding that the errors could be adequately addressed through limiting instructions to the jury.

The applicant, charged with second degree murder, brought a pre-trial motion to admit evidence of the deceased's disposition for aggressive and provocative behaviour when intoxicated.

The applicant intended to argue self-defence at trial.

The court considered whether evidence of the deceased 'beaking off' to strangers was logically relevant to the issue of who was the aggressor in the fatal confrontation.

The court ruled the evidence admissible, finding it minimally supportive of the deceased's aggressive nature when drinking and concluding its probative value was not substantially outweighed by potential prejudice.

The offender was found guilty of production of marijuana and possession for the purpose of trafficking after police discovered 818 marijuana plants in a residential grow operation.

The offender, who acted as a caretaker or gardener, challenged the constitutionality of the two-year mandatory minimum sentence under s. 7(2)(b)(v) of the Controlled Drugs and Substances Act.

The court found that while the mandatory minimum was not grossly disproportionate for this specific offender, it violated s. 12 of the Charter based on reasonably foreseeable hypothetical scenarios involving licensing infractions.

The mandatory minimum was struck down, and the offender was sentenced to 12 months' imprisonment.

The accused was charged with several firearms offences after taking a firearm and ammunition from a vehicle and delivering them to an acquaintance for safekeeping.

The defence argued that the accused acted under duress arising from threats of death or serious bodily harm by an abusive partner with a violent criminal history.

The court assessed the common law defence of duress using the framework from Supreme Court of Canada authorities and considered evidence of threats, fear, the accused’s circumstances including drug dependency and abuse, and whether a safe avenue of escape existed.

The court concluded that the threats were credible, temporally connected to the accused’s conduct, and reasonably believed by the accused.

Although alternatives may have existed objectively, the accused’s circumstances undermined the availability of a safe avenue of escape, and the proportionality requirement was satisfied.

The Crown brought a bail review application under the Criminal Code after a justice of the peace ordered the accused released pending trial on serious charges including kidnapping, extortion, unlawful confinement, assault causing bodily harm, and uttering threats.

The reviewing judge held that the justice of the peace erred by giving insufficient weight to the accused’s extensive violent criminal record and excessive weight to the proposed surety.

The accused had a lengthy history of violent offences, breaches of court orders, and further violent conduct while in custody.

Applying the secondary and tertiary grounds under s. 515(10) of the Criminal Code and the guidance from R. v. St. Cloud, the court concluded there was a substantial likelihood the accused would commit further offences if released and that detention was necessary to maintain confidence in the administration of justice.

The prior release order was therefore clearly inappropriate.

The accused was charged with production of marihuana and possession of marihuana for the purpose of trafficking after police discovered a large commercial grow operation in a residence.

The prosecution relied primarily on circumstantial evidence, including surveillance showing the accused attending the premises multiple times and possessing keys to the residence.

The defence argued the accused merely attended the home to check on a tenant and had no knowledge of the grow operation.

The court rejected the defence evidence as implausible and found that the accused had knowledge and a measure of control over the premises, supporting constructive possession and party liability for production.

The accused was convicted on both counts.

The applicant, charged with drug offences and theft of electricity related to a marijuana grow operation, sought to exclude house keys seized by police during his arrest outside the residence.

The applicant argued the keys were obtained through an unlawful arrest and warrantless search, breaching his ss. 8, 9, and 10(b) Charter rights.

The court found that the applicant had abandoned the keys by tossing them onto the lawn upon seeing the police, meaning no search occurred and no s. 8 rights were violated.

The court further held that even if the arrest was arbitrary and a breach occurred, the evidence would be admissible under s. 24(2) of the Charter, as the police conduct was not deliberate and the evidence was highly reliable real evidence essential to the prosecution.

The application to exclude the evidence was dismissed.

The appellant appealed a conviction for impaired operation of a motor vehicle, arguing that police violated section 8 of the Canadian Charter of Rights and Freedoms by requiring her to remove her underwire bra during the booking process at a police station.

The trial judge held the removal of the bra did not constitute a strip search and that the police acted pursuant to a routine safety policy.

On appeal, the court held that requiring removal of an undergarment for visual inspection falls within the Supreme Court of Canada's definition of a strip search under R. v. Golden.

The court concluded that the trial judge erred by failing to apply the requirement that strip searches be justified by reasonable and probable grounds based on case‑specific circumstances rather than routine policy.

Because the search relied on an unwritten policy automatically applied to female detainees wearing underwire bras, the Charter analysis was flawed.

The conviction was quashed and a new trial ordered.

The accused sought to exclude evidence obtained from a warrantless search of a vehicle and a subsequent residential search warrant, alleging violations of s. 8 of the Charter.

The court found that police had reasonable and probable grounds to arrest for possession for the purpose of trafficking based on surveillance, corroborated confidential informant information, and observed conduct consistent with drug transactions.

The vehicle search was held to be lawful as a search incident to arrest under common law principles.

The accused’s Garafoli challenge to the residential search warrant failed, as the Information to Obtain contained sufficient indicia of informant reliability and a nexus between the accused, suspected trafficking activity, and the residence.

The court dismissed the Charter application and admitted the impugned evidence.