Magdalena Wyszomierska

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.

Criminal trial involving charges of assault and uttering threats against two defendants arising from allegations of child abuse occurring between November 1 and December 23, 2016.

The prosecution relied primarily on testimony from two teenage witnesses, one of whom was a close friend of the family.

The court found credibility issues with the witnesses' evidence, particularly regarding exaggeration and inconsistencies.

The defendants were charged with failing to provide necessaries of life, assault, and uttering threats.

The fail to provide necessaries charges were dismissed on application for directed verdict.

The court found the defendants guilty of two assault charges but acquitted them of the remaining charges.

The Crown applied for certiorari with mandamus in aid to review a preliminary inquiry judge's decision discharging the respondents on charges of first degree murder.

The preliminary inquiry judge had committed one respondent for second degree murder and the other for accessory after the fact, concluding there was 'no evidence' of planning and deliberation.

The Superior Court found that the preliminary inquiry judge committed jurisdictional error by concluding there was no evidence, rather than insufficient evidence, given the circumstantial evidence of the respondents following the deceased and shooting him.

The application was granted, the discharges quashed, and the matter remitted with a direction to commit both respondents for first degree murder.

The offender, Matthew Cosmo Deiaco, pleaded guilty to several human trafficking and related offences, including trafficking in persons, receiving material benefit from an offence, confinement, assault causing bodily harm, and using an imitation firearm.

The Crown sought a global sentence of 9 years, while the defence proposed 6 years.

The court imposed a global sentence of 8 years, less credit for pre-sentence custody, resulting in a remaining sentence of 4 years, 4.5 months.

The judge considered aggravating factors such as the victim's vulnerability, the extensive control exercised by the offender, the violence used during the victim's escape, and the offender's significant criminal record and lack of insight.

Mitigating factors included a difficult upbringing, sexual abuse, and a guilty plea that saved court time and spared victims from testifying.

However, enhanced credit for harsh pre-sentence custody conditions was denied due to a lack of evidence regarding negative impact and the offender's record of misconduct while incarcerated.

A lifetime weapons prohibition, DNA order, and Sex Offender Information Registration Act (SOIRA) order for life were also imposed.

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.

The accused was charged with robbery with a knife, possession of a knife for a dangerous purpose, and unlawfully being in a dwelling house arising from a home invasion robbery.

The Crown's case relied primarily on identification evidence from the victim and a witness who called 911.

The victim could not identify the assailants.

The witness provided identification through a 911 call but later testified he only "vaguely" identified the accused based on information from a third party rather than direct observation.

The court found the identification evidence unreliable due to multiple factors including the witness's drug use at the time, significant discrepancies in physical descriptions (particularly height), inconsistencies between the 911 call and trial testimony, and the fleeting nature of the observation.

The accused was acquitted.

The applicant sought a determination on the constitutionality of section 85(4) of the Criminal Code, which mandates consecutive sentences for using a firearm during an indictable offence, arguing it violates section 12 of the Charter by imposing cruel and unusual punishment.

The court found that section 85(4) was unconstitutional, as its "stacking effect" would lead to grossly disproportionate sentences for the applicant and reasonable hypothetical offenders, and could not be saved under section 1 of the Charter.

The court declined to rule on the constitutionality of section 85(3), finding it severable.

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.

Sean Thomas pleaded guilty to one count of fraud and seven counts of robbery, including home invasions and convenience store robberies, committed over six weeks in 2012.

The court considered aggravating factors such as the sophistication and planning of the offences, victim vulnerability, use of weapons (including a discharged shotgun), and the significant impact on victims.

Mitigating factors included his youth (18 at the time of offences), genuine remorse, family support, and efforts towards rehabilitation in custody.

The court applied principles of totality and parity, imposing a global sentence of nine years, less credit for pre-sentence custody, resulting in three years and six and a half months remaining.

Ancillary orders included a lifetime firearms prohibition, DNA order, and non-communication orders.