Margaret Bojanowska

Judge-alone criminal trial on historical sexual assault-related charges involving two complainants who alleged abuse by a parental figure in the family home.

The Crown sought to rely on each complainant's evidence as similar fact evidence for the other, but the court held the Crown had not disproved an air of reality to collusion on a balance of probabilities.

After extensive review of inconsistencies, motive to fabricate, delayed disclosure, and reliability concerns, the court found the complainants' evidence did not satisfy the criminal standard.

The accused was acquitted on all counts.

The appellant appealed his conviction and sentence for sexual assault and choking.

On the conviction appeal, he argued that the trial judge's interventions during the complainant's cross-examination prevented a fair trial and that the trial judge erred in finding no air of reality to the defence of honest belief in consent.

The Court of Appeal dismissed the conviction appeal, finding the interventions did not curtail cross-examination or show bias, and the factual findings foreclosed the honest belief defence.

On the sentence appeal, the Court found that consecutive sentences for sexual assault and choking were not warranted as the choking was part of the sexual assault.

The Court also applied a 1.5:1 credit for pre-sentence custody, reducing the total sentence from six years to four and a half years.

In a first‑degree murder prosecution, the court ruled on the admissibility of a video statement given by one accused to police after earlier Charter breaches involving statements obtained before the right to counsel was provided.

The defence argued the later statement was derived from and tainted by the earlier unconstitutional interrogations.

The court held the statement to the interviewing detective was voluntary and not sufficiently connected to the earlier breaches.

A “fresh start” occurred after the accused consulted counsel, received proper cautions, and was interviewed hours later by a different officer.

Even if s. 24(2) of the Charter applied, the court concluded the statement would still be admitted under the Grant framework.

The accused sought exclusion of a knife alleged to be the murder weapon in a first‑degree murder prosecution, arguing it was discovered as a result of statements obtained in breach of their Charter s. 10(b) right to counsel.

The court found that several statements were indeed elicited in violation of the right to counsel, including roadside questioning and later questioning in hospital.

However, applying the framework in Grant, the court concluded that the knife was independently discoverable through the planned search of the defined area and the canine track leading to the creek.

While the seriousness of the Charter breaches favoured exclusion, the reliability of the physical evidence and its independent discoverability attenuated the impact on the accused’s interests.

The statements were excluded but the knife was admitted into evidence.

During a jury trial for robbery and murder, the Crown sought to reference similarities between a prior cheque fraud scheme and the alleged murder during closing submissions.

The prior fraud evidence had previously been admitted only to establish financial motive and not as evidence of modus operandi.

Defence counsel objected, arguing that such submissions would improperly expand the permitted use of the evidence and prejudice the defence.

The court held that permitting the Crown to rely on the fraud to characterize the accused’s roles would effectively revisit the earlier evidentiary ruling and risk distracting the jury from the central issue of guilt.

The Crown was therefore prohibited from referring to similarities between the fraud and the murder in closing argument.

In a jury trial for first-degree murder, the court ruled on pre‑charge issues concerning the theories of liability that could be left with the jury.

The Crown sought to rely on constructive first‑degree murder under s. 231(5)(e) of the Criminal Code based on alleged forcible confinement, and on contracted murder under s. 231(3) arising from BBM messages suggesting a promise of a vehicle in exchange for participation in the killing.

The court held there was insufficient evidentiary foundation to leave constructive first‑degree murder to the jury because there was no evidence of unlawful confinement distinct from the killing itself.

However, the BBM messages were capable of supporting a reasonable inference of a murder-for-hire arrangement involving a vehicle as consideration.

The court therefore ruled that the contracted‑murder pathway under s. 231(3) could be left with the jury but not the constructive first‑degree theory.

During a murder trial, the Crown sought a ruling that gestures made by the deceased immediately before death constituted dying declarations.

The deceased, who had suffered catastrophic stab wounds and could not speak, pointed to his abdomen and then toward one of the accused while officers attempted to render aid.

The court considered whether such gestures could qualify as hearsay falling within the dying declaration exception.

Applying the criteria for dying declarations, the court found the circumstances permitted the inference that the deceased expected imminent death and that the gestures related to the circumstances of the homicide.

The judge concluded that the gestures could constitute assertions by conduct and therefore fall within the dying declaration exception, subject to further argument regarding admissibility.

In a first‑degree murder trial, the Crown sought to introduce evidence of prior discreditable conduct arising from Blackberry Messenger chats and related events, including possession of a stolen vehicle, a cheque‑cashing fraud, a concurrent plot to rob and kill another individual, and evidence relating to the accused’s financial misrepresentations.

The court considered the governing principles for admitting prior discreditable conduct, requiring a link to a live issue and a probative value that outweighs prejudice.

The court admitted evidence relating to a stolen vehicle, a cheque fraud shortly before the murder, efforts to obtain firearms, and chats revealing a concurrent plot to rob and kill another individual because they were intertwined with the narrative and relevant to motive, planning, deliberation, and state of mind.

However, the court excluded certain other evidence, including a photograph involving an imitation firearm, related web searches, and earlier unrelated robbery‑murder planning discussions, finding their prejudicial effect outweighed their limited probative value.

Evidence concerning the accused’s financial misrepresentations was admitted as relevant to motive.

The accused brought a Charter motion seeking exclusion under s. 24(2) of digital evidence obtained from Blackberry phones and a Blackberry Playbook after the court previously found the searches violated s. 8 of the Charter.

Applying the framework in R. v. Grant, the court assessed the seriousness of the Charter breach, the impact on the accused’s privacy interests, and society’s interest in adjudication on the merits.

The court admitted certain communications data, including BBM chats, SMS messages, emails, notes, and call logs, but excluded other categories of device data such as browser history, cookies, multimedia files, and related metadata.

The accused also challenged production orders issued to telecommunications and health authorities.

The court rejected those challenges, holding that sufficient grounds existed for the issuing justice and declining to excise references to chats that were also lawfully obtained from another device.

The accused, charged with first degree murder, brought a Charter motion challenging the search of Blackberry devices and other electronic devices seized during the investigation.

The police conducted physical chip extraction and later re‑examined the resulting data using updated forensic software, which revealed deleted Blackberry Messenger communications.

The applicants argued the search warrant was overbroad and the searches were conducted unreasonably contrary to s. 8 of the Charter.

The court held that the police exceeded the limits of the warrant by conducting a sweeping search of multimedia, browser data, and other information beyond communications authorized in the Information to Obtain.

The searches of the Blackberry devices were found to violate s. 8, while other search warrants and production orders challenged by one accused were upheld.

The accused, charged with first degree murder, brought a Charter application challenging the validity of a search warrant used to extract data from their Blackberry phones.

They argued the warrant was facially invalid because it referenced the OPP property vault as the place to be searched, contained outdated language permitting searches related to the 'suspected commission' of an offence, and imposed a time limit that allegedly expired before the forensic analysis occurred.

They also argued the warrant did not authorize data extraction and that a later re‑analysis of the data with updated software required a new warrant.

The court held that the warrant, read together with the Information to Obtain and appendix, authorized the search of the phones and their data.

The court further found the time limitation applied only to entry and seizure, not to later forensic analysis, and that the subsequent software‑based re‑analysis constituted a further analysis of lawfully seized data rather than a new search.

The appellant appealed his sentence of 24 months' imprisonment and probation for multiple counts of robbery, unlawful confinement, and related offences arising from an armed robbery at a grocery store.

The appellant argued his sentence was disproportionate compared to similar cases.

The Court of Appeal found no error in principle and held the sentence was not manifestly unfit, noting the serious aggravating factors including planning, multiple perpetrators, and the use of an imitation machine gun.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault, arguing the trial judge erred in assessing the complainant's credibility.

The Court of Appeal acknowledged the trial judge mistakenly stated defence counsel failed to cross-examine the complainant about oral sex.

However, the Court found this error was entitled to very little weight given the totality of the evidence, including the appellant being found naked and intoxicated in the complainant's bed, his failure to testify, and substantial independent corroboration.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and sexual assault with a weapon against his estranged spouse.

He argued the trial judge erred in relying on the complainant's post-offence demeanour, improperly rejected his evidence, and sought to introduce fresh expert evidence that a mark on his finger was not a bite mark.

The majority of the Court of Appeal dismissed the appeal, finding the trial judge properly assessed credibility and that the fresh evidence, even if believed, could not reasonably be expected to have affected the result given the strength of the other evidence.

The appellant, who was 17 at the time of the offence, appealed his conviction for second degree murder arising from a robbery.

He argued the trial judge erred in instructing the jury on the defence of intoxication, the common sense inference, and the use of bad character evidence obtained during a 'Mr. Big' undercover operation.

The Court of Appeal found that the jury instructions, read as a whole, adequately conveyed the necessary legal principles regarding intoxication and intent.

The Court also held that the failure to give a standard limiting instruction on bad character evidence was not a reversible error given the defence's tactical reliance on that evidence to impugn the reliability of the appellant's confession.

The appeal was dismissed.

The appellant appealed his convictions and sentence after pleading guilty to assault causing bodily harm, assault, and three counts of breaching release orders.

He argued his guilty pleas were invalid because they were coerced and uninformed.

The Court of Appeal dismissed the conviction appeal, finding the pleas were voluntary, unequivocal, and informed based on the trial record and fresh evidence.

However, the Court allowed the sentence appeal, finding the trial judge erred in principle by overemphasizing denunciation and deterrence at the expense of rehabilitation.

The sentence was varied to time served (nine months) followed by two years of probation.

The appellant was convicted by a jury of sexually assaulting two young brothers.

During the trial, a Crown witness testified that his son had called the appellant a 'rapist pedophile'.

The trial judge refused the appellant's application for a mistrial, opting instead to give a mid-trial curative instruction to the jury.

On appeal, the appellant argued the trial judge erred in refusing the mistrial and in failing to repeat the caution in his closing instructions.

The Court of Appeal dismissed the appeal, finding the trial judge's exercise of discretion was not clearly wrong and the mid-trial instruction was sufficient to remove the potential prejudice.

The appellant appealed his conviction for sexual assault and his sentence of 4.5 years in custody followed by two years of probation.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's jury instructions regarding the defence position, Crown submissions, the W.D. charge, or limiting instructions on discreditable conduct.

However, the sentence appeal was allowed.

The Crown conceded the probation order was illegal and that the trial judge misapprehended the length of the appellant's prior sentences.

The Court set aside the probation order and reduced the custodial sentence to 3 years less 4 months for time served.

The appellant appealed his manslaughter conviction and eight-year sentence arising from a beating death during a home invasion robbery.

The Crown's case relied heavily on an unsavoury witness who testified that the appellant and a co-accused went to the deceased's house and returned making incriminating statements.

The appellant argued the trial judge erred in his jury instructions regarding confirmatory evidence, reasonable doubt, party liability, and by characterizing another witness's evidence as 'useless'.

The Court of Appeal found the jury charge functionally appropriate and fundamentally fair, concluding that any errors were harmless given the overwhelming evidence of a joint enterprise robbery.

The appeals against conviction and sentence were dismissed.

The appellant was convicted of second degree murder following a street altercation where he stabbed the deceased.

At trial, the judge declined to leave the defence of provocation with the jury, finding no air of reality to the defence because the appellant disavowed anger as the trigger for his actions.

On appeal, the Court of Appeal held that the trial judge erred.

Despite the appellant's testimony that he acted out of fear, there was evidence from which a properly instructed jury could infer that he acted in the heat of passion or sudden loss of self-control due to the deceased's insults and actions.

The appeal was allowed and a new trial ordered.