Magdalena Wyszomierska

This decision addresses a Charter application concerning a 95-minute delay in implementing Mr. Mohamed’s s. 10(b) right to counsel following his arrest for impaired driving and related firearms offences.

The court found a breach of the right to counsel due to the delay, primarily caused by the arresting officer’s failure to arrange alternative transport to the station.

However, the evidence of the firearm, ammunition, and breath samples was admitted under s. 24(2) of the Charter after a balancing of factors, given the minor impact on the accused’s rights and the strong public interest in adjudicating the case on its merits.

The court acquitted Mr. Mohamed on the firearms-related charges due to insufficient evidence linking him to the firearm but convicted him on impaired driving and over-80 charges based on reliable breathalyzer evidence.

The accused, Dennis Mensah and Marvin Nyarko Mensah, were sentenced following a judge-alone trial where Dennis was found guilty of firearms and drug trafficking offences (fentanyl and carfentanil), and Marvin was found guilty of drug trafficking and possession of proceeds of crime.

The court considered aggravating factors such as the dangerous nature and quantity of drugs, the presence of a loaded firearm (for Dennis), and the sophistication of the operation.

Mitigating factors included the accused's youth, social context evidence of anti-black racism and growing up in a high-crime, low-income area, and rehabilitation prospects.

The court applied the Kienapple principle to stay some firearms charges for Dennis.

Dennis received a total sentence of 4.5 years, and Marvin received 5.5 years, with credit for pre-trial custody and strict bail conditions.

Ancillary orders included lifetime weapons prohibitions and forfeiture of seized items.

Moses Water breached his conditional sentence order (CSO) by violating house arrest, failing to carry his order, and assaulting someone.

The court found the breaches serious and wilful.

Despite 72 days already spent in custody due to the suspension of his CSO, the court determined this was insufficient.

Applying the principles of sentencing and the breach regime under the Criminal Code, the court ordered an additional 90 days in custody, followed by a modified conditional sentence with extended house arrest and curfew periods, emphasizing deterrence and rehabilitation.

The accused, two brothers, were charged with various drug trafficking, firearms, and proceeds of crime offences following a police investigation.

The Crown relied on circumstantial evidence to prove the accused had knowledge and control of contraband found in secret compartments in two vehicles and cash found in an apartment.

The court found both accused guilty of the offences relating to the vehicles, concluding that their exclusive or near-exclusive use of the vehicles and the presence of personal items in the secret compartments left no other reasonable inference than guilt.

However, both accused were acquitted of possessing the cash found in the apartment, as other individuals had access to the unit, raising a reasonable doubt.

Mohamud Dirie appealed his first-degree murder conviction, arguing the trial judge erred in admitting ante mortem hearsay statements and that the jury charge was unbalanced.

The Court of Appeal dismissed the appeal, finding no reversible errors in the pre-trial evidentiary rulings regarding the admissibility of the deceased's statements about fear and prior incidents, or in the trial judge's decision not to allow viva voce cross-examination of a witness on the voir dire.

The court also found the jury charge was fair and balanced, despite the trial judge's permissible expressions of opinion on the evidence.

The offender, Mageed Bedawi Tago, pleaded guilty to possession of a loaded prohibited firearm, careless use of a firearm, and breach of a release order.

The Crown sought a sentence of 22 months imprisonment, while the defence sought 15 months, both accounting for mitigating factors.

The court considered aggravating circumstances, including the public nature of the offence, flight from police, and breach of bail, alongside mitigating factors such as the offender's youth, rehabilitative prospects, guilty plea, and harsh pre-sentence custody conditions due to COVID-19.

The court determined a fit sentence of 22 months imprisonment, with 7 months credit for pre-sentence custody, leaving 15 months to serve.

Ancillary orders included a two-year probation, a lifetime firearms prohibition, and a DNA sample order.

During a first-degree murder trial, the court ruled on three pre-charge issues.

First, the court held that post-offence conduct evidence regarding a Facebook profile change and a payment in cocaine could not be used to infer intent, as the conduct was equally consistent with innocent explanations.

Second, the court denied the Crown's request to urge an adverse inference against the accused for failing to call a witness to corroborate his intoxication defence, noting it would improperly shift the burden of proof.

Finally, the court removed jury instructions on alternate modes of participation after the accused conceded he caused the victim's death as a principal.

During a murder trial, the defence sought to qualify a clinical pharmacist as an expert to provide opinion evidence on the effects of cocaine, marijuana, and alcohol on the accused's brain and executive functions.

The Crown opposed the qualification, arguing the proposed evidence strayed into psychiatry and neurology.

Following a Mohan voir dire, the court qualified the witness as an expert in pharmacology to testify on the general effects of the drugs, but strictly limited his evidence, prohibiting opinions on consciousness, automatism, or conclusive statements about the accused's specific cognitive decoupling.

During a murder trial, the accused elected to testify.

In cross-examination, the Crown sought to play the entirety of the accused's 43-minute police statement for impeachment purposes.

The defence objected, arguing this would allow the Crown to impermissibly split its case.

The court dismissed the objection, finding that playing the statement in its entirety would not offend the rule against case-splitting, as the accused knew the case to meet, the statement contained numerous contradictions relevant to his state of mind, and playing it was the most efficient way to put the inconsistencies to him.

The Crown sought to introduce eleven autopsy photographs in a homicide trial where the accused allegedly struck the deceased with a hammer.

The defence contested the admissibility of two photographs that showed the deceased's face alongside the injuries.

The court applied the balancing test for probative value versus prejudicial effect.

Finding that the contested photographs were redundant because other uncontested photographs adequately showed the same injuries without displaying the deceased's face, the court excluded the two photographs to avoid unnecessary emotional impact on the jury.

During a first-degree murder trial, the defence sought to cross-examine a Crown witness on out-of-court exculpatory statements made by the accused.

The defence argued the statements were not tendered for the truth of their contents, but to test the witness's credibility and reliability.

The Crown objected to the use of these statements.

The court ruled that generally, out-of-court exculpatory utterances of an accused cannot be introduced through a non-accused witness to challenge credibility, as this offends the rules against hearsay and prior consistent statements.

The court permitted the defence to cross-examine the witness on one specific pre-offence statement to test her recollection, but prohibited questioning on another statement that appeared to be based on hearsay from other individuals.

The Crown sought a pre-emptive ruling to limit defence counsel's cross-examination of two key Crown witnesses (DC and ZH) on their prior manslaughter convictions related to the same killing for which the accused, Jordan Osborne, was charged with first-degree murder.

Defence counsel intended to use these convictions to undermine credibility by demonstrating character defects and a motive to distance themselves from the murder by implicating Osborne.

The court found that prior convictions are legislatively deemed relevant to credibility under s. 12 of the Canada Evidence Act.

Distinguishing the case from precedents concerning prior acquittals or convictions used to bind a jury on culpability, the court held that the manslaughter convictions were relevant to the witnesses' credibility and potential vested interest in the outcome.

The court further determined that the probative value of this defence-led evidence was not substantially outweighed by the potential for reasoning prejudice, which could be mitigated by a limiting instruction to the jury.

The Crown's application to limit cross-examination was dismissed, allowing defence counsel to question the witnesses about their manslaughter convictions.

Jordan Osborne was charged with first-degree murder.

The Crown sought to admit his video-recorded confession into evidence.

Defence counsel argued the confession was involuntary due to police misrepresentations, implicit threats or promises regarding a reduced charge, and oppressive conditions (a thin jumpsuit).

The court, applying the common law confessions rule from *R. v. Oickle*, found that the police conduct, including statements about the seriousness of the charge and the potential for a lesser charge based on intent, did not constitute an explicit or implicit threat or promise strong enough to overbear the accused's will.

The court also found the jumpsuit did not create oppressive conditions.

The confession was deemed voluntary and admissible.

The defendant, charged with first-degree murder, applied to sit at counsel table during his upcoming jury trial, rather than in the prisoner's dock.

The court considered two lines of authority regarding the presumptive seating position and emphasized the trial judge's wide discretion, which should be contextually driven.

Balancing the defendant's fair trial rights and dignity against security concerns, and noting the absence of specific security risks, the court granted the application, finding it would attenuate prejudice and facilitate solicitor-client communication.

Alex Sheikh sought a review of a detention order made by a Justice of the Peace.

The applicant was charged with multiple offences, including assault and various firearm offences, and had a significant criminal record with prior breaches of court orders.

The original detention was based on secondary grounds, citing a substantial likelihood of committing further offences if released.

The applicant proposed four changes to his bail plan, including a new surety, a change in his mother's work schedule, willingness to undertake alcohol treatment, and GPS monitoring.

The court found that while these changes incrementally reduced the likelihood of re-offending, they were insufficient to overcome the substantial likelihood of committing criminal offences given the applicant's history.

The application for review was dismissed, and the detention order was upheld.

The Crown brought an application during a first-degree murder trial to admit the preliminary inquiry evidence of two unavailable witnesses under s. 715(1) of the Criminal Code.

One witness was too ill to testify, which the defence conceded.

The other witness had left Canada and was evading his subpoena.

The court found that the witness was absent from Canada and that it was not feasible to take his evidence via video link.

Balancing the probative value of the evidence against potential trial unfairness, the court admitted the preliminary inquiry evidence, noting the defence could lead evidence regarding the witness's credibility.

During a first-degree murder trial, the accused brought an application under s. 24(1) of the Charter to exclude the evidence of a Crown witness, arguing that the police's failure to properly record and preserve evidence from group meetings with witnesses breached his rights under ss. 7 and 11(d).

The court dismissed the application, finding that the police did not deliberately fail to make a record to avoid production, and that the imperfect note-taking and group interviews did not render the trial unfair given the extensive disclosure available to the defence for cross-examination.

During a trial for first degree murder, the Crown brought an application to admit several ante-mortem hearsay statements made by the deceased to his mother and cousin.

The statements detailed a history of animosity and fear of the accused.

The court applied the principled exception to the hearsay rule, assessing the threshold reliability of each statement.

The court admitted several statements that possessed sufficient circumstantial guarantees of trustworthiness, such as those made shortly after traumatic events or expressing present fear.

However, the court excluded other statements that were made under circumstances of suspicion or were inextricably intertwined with double hearsay.

The court also declined the defence's request to cross-examine the deceased's mother on the voir dire, finding that her preliminary inquiry transcripts were sufficient to assess threshold reliability and that her credibility was not so deficient as to rob the statements of all probative value.

The applicant, Timothy Hewton, sought an order for separate trials on two sets of charges: prostitution-related counts and firearm-related counts.

Hewton argued that a joint trial would prejudice his fair trial interests due to the risk of propensity reasoning and his intention to testify on the prostitution counts but not the firearm counts.

The Crown opposed, asserting a factual and legal nexus between the charges and concerns about increased court time and a vulnerable witness testifying twice.

Applying the principles from R. v. Last, the court found that the interests of justice required separate trials, primarily due to the danger of propensity reasoning and the objective reasonableness of the applicant's testimonial intention.

Kemon Edwards was charged with firearm offences.

The Crown sought to admit expert evidence from Detective Scott Ferguson on the characteristics of an armed person based on surveillance video, and from Dr. Robert Gerard on gunshot residue (GSR) found on the accused's clothing.

The court qualified Detective Ferguson as an expert but limited his testimony to general characteristics, prohibiting him from commenting directly on the video's content to avoid usurping the jury's role.

Dr. Gerard's expertise on GSR detection was accepted, but his testimony was restricted from opining on the percentage of particle transfer from an unpublished study, though he could generally comment on the risk of contamination and the significance of particle numbers.

The court emphasized that contamination risks affect the weight of GSR evidence, not its admissibility, and are for the jury to assess.