Mary Humphrey

This decision addresses the constitutionality of routine strip searches of young persons in pre-trial custody, focusing on four Black adolescent female applicants charged in the high-profile homicide of Kenneth Lee.

The court found that routine strip searches, conducted without individualized grounds or prior authorization and involving complete nudity, violated sections 7 and 8 of the Charter.

The court declined to grant a stay of proceedings, instead holding that the appropriate remedy was a reduction in sentence for any applicant found guilty, to reflect the Charter breach.

The ruling provides detailed analysis of the legal and regulatory framework, the psychological impact of strip searches, and the evolving standards for custodial searches in youth justice settings.

The court sentenced Ibrahim Khiar for manslaughter and aggravated assault after he fired eight shots at Marcel Teme, killing him, and injuring three bystanders.

The Crown sought a life sentence or, alternatively, 20 years’ incarceration with delayed parole eligibility.

The defence sought 15 years.

The court imposed 18 years, to be served concurrently with a prior sentence, and declined to delay parole eligibility.

The decision reviews the facts, aggravating and mitigating factors, the impact of systemic racism, and relevant case law on sentencing for manslaughter with a firearm.

This decision addresses three mid-trial applications in a first-degree murder case.

The Crown's application to read in preliminary hearing evidence of an evading witness under s. 715(1) of the Criminal Code was granted, with the court finding that evasion of service constitutes refusal to testify.

The defence's application for a directed verdict on first-degree murder was dismissed, as the court found sufficient circumstantial evidence of planning and deliberation for the jury to consider.

Finally, the defence's application to have self-defence left to the jury was granted, with the court determining there was an air of reality to the defence, even though the accused did not testify, based on the evolving circumstances of a second encounter with the victim.

The applicant, charged with first-degree murder, applied for bail pending a retrial ordered by the Court of Appeal.

The court found that the applicant failed to meet his burden to show that his detention was not justified on the secondary and tertiary grounds.

The proposed release plan was deemed insufficient to mitigate the risk of reoffending or interfering with the administration of justice, and the strong circumstantial case against the applicant necessitated his continued detention to maintain public confidence in the administration of justice.

The application for bail was dismissed.

The accused, Osman, applied for a directed verdict on a charge of accessory after the fact to murder.

Osman had assisted the principal offender in escaping after a shooting, but the victim did not die until three days later.

The Crown conceded the accused could not be convicted of the charged offence since the victim was alive at the time of assistance, but argued for a conviction on the included offence of accessory after the fact to attempt murder.

The court rejected the Crown's arguments, finding that accessory after the fact to attempt murder is not an included offence under s. 662(1) and cannot be applied via s. 660 in these circumstances.

The application was granted and a directed verdict of acquittal was entered.

The Crown and the accused brought six pre-trial motions relating to a joint trial for murder and accessory after the fact.

During the hearing, the accused Osman failed to appear, and the court found he had absconded under s. 475 of the Criminal Code, allowing the motions to proceed in his absence.

The court granted a consent order protecting the identities of three victim witnesses.

The court ruled that evidence of the accused's after-the-fact conduct, including flight and a subsequent meeting, was admissible for limited purposes.

Osman's s. 11(b) Charter application for unreasonable delay was dismissed, as the delay caused by the COVID-19 pandemic was reasonably mitigated by the Crown.

Khiar's s. 8 Charter application to exclude video surveillance obtained from his condominium's property manager without a warrant was dismissed, as he had a low expectation of privacy in the common areas.

Finally, the court admitted the expert opinion evidence of a forensic video analyst, subject to limitations on tracking and comparing clothing characteristics.

The accused Osman, charged as an accessory after the fact to murder, brought a pre-trial motion for severance from his co-accused, who was charged with second-degree murder.

Osman argued that severance was necessary to preserve his right to be tried within a reasonable time, as he was ready for a judge-alone trial while his co-accused insisted on a jury trial, which was suspended due to the COVID-19 pandemic.

The court found the motion premature, noting that the Crown had not yet sought consent for a judge-alone trial and further case management was required.

The motion was adjourned with specific case management orders made to expedite the proceedings.

Christopher Husbands was on trial for murder and aggravated assault following a shooting incident.

The defence sought verdicts of Not Criminally Responsible on account of Mental Disorder (NCRMD) due to a dissociative state.

During jury deliberations, a question arose regarding whether the accused should be found NCR if he was able to appreciate the nature and quality of some, but not all, of the shots fired.

The judge instructed the jury to consider the defence's onus to prove NCRMD for the shots that caused the deaths and injuries, emphasizing the lack of evidentiary basis to parse the shots.

The jury ultimately found Husbands guilty of two counts of manslaughter, five counts of aggravated assault, and other firearm-related counts.

Christopher Husbands, facing a retrial for murder and aggravated assault stemming from the Toronto Eaton Centre shooting, applied to exclude viva voce evidence or prior testimony of a 13-year-old victim and his family.

The defence argued that given the accused's admissions and the live issues at trial (specifically, a Not Criminally Responsible defence based on PTSD), the prejudicial impact of such emotional testimony would outweigh its probative value.

The Crown opposed, suggesting the evidence would balance sympathy for the accused.

The court allowed the defence's application, ruling that the evidence of the victim and his family would be presented via agreed statements of fact, read to the jury and filed as exhibits, rather than through live testimony or prior audio, as the latter would be highly prejudicial without significant probative value on the contentious issues.

The Crown applied to admit an audio-taped hearsay statement from Nisan Nirmalendran, a deceased witness, regarding the 2012 Eaton Centre shooting where the accused, Christopher Husbands, admitted firing shots.

Husbands' defence was not criminally responsible due to PTSD and dissociation.

The court dismissed the Crown's application, finding the statement lacked necessity due to other available evidence and failed to meet the threshold reliability criteria.

Key reasons for denying admissibility included the absence of an oath or affirmation, lack of cross-examination, potential tainting from news reports, and significant motives for the declarant to fabricate or downplay his actions.

Christopher Husbands, facing a retrial for murder and aggravated assault, asserted a Not Criminally Responsible (NCR) defence based on mental disorder automatism due to PTSD.

The defence applied to exclude expert references to Antisocial Personality Disorder (ASPD) and to limit references to malingering.

The court dismissed both applications, ruling that ASPD could be referenced, with limitations on propensity aspects, focusing on its manipulation, malingering, and deception components relevant to the NCR defence.

The court also allowed Crown experts to refer to malingering concerns, emphasizing its relevance to the NCR issue and providing jury instructions to distinguish it from the presumption of innocence regarding the elements of the offence.

Christopher Husbands, facing charges including second-degree murder, applied to challenge prospective jurors for cause based on potential bias related to mental illness, specifically concerning a "not criminally responsible" defence.

The defence proposed a third challenge question regarding preconceptions about mental illness, in addition to agreed-upon challenges for race and publicity.

The court considered expert testimony on public stigma against mental illness but found that the evidence did not establish a widespread bias specific to the mental disorder at issue (PTSD) or that jurors would be unable to set aside such bias despite judicial instructions.

The application for the additional challenge for cause question was dismissed.

The accused, charged with first-degree murder and indignity to a dead body, brought a pre-trial motion to exclude evidence seized from his apartment during warranted searches, alleging multiple Charter breaches.

The police had initially made a warrantless entry into the accused's apartment under exigent circumstances after discovering a dismembered body nearby.

The court found that while looking through the mail slot and failing to provide the right to counsel upon initial detention violated the Charter, the warrantless entry itself was justified under s. 487.11 of the Criminal Code.

Applying the Grant framework, the court concluded that the cumulative effect of the Charter breaches did not warrant exclusion of the evidence under s. 24(2), as the police acted in good faith, the impact on protected interests was minimal due to discoverability, and society's interest in adjudicating the serious charges on the merits was high.

The application was dismissed.

In a pre-trial ruling for a first-degree murder trial, the accused applied to exclude security video surveillance recordings obtained by police from the common areas of his apartment building.

The accused argued the warrantless seizure violated his s. 8 Charter rights.

The court dismissed the application, finding the accused had no reasonable expectation of privacy in the common areas of the 246-unit building.

The court further held that even if a breach occurred, the evidence would not be excluded under s. 24(2) of the Charter as the police acted in good faith and the evidence was highly reliable and important to the case.

This pre-trial ruling addressed the admissibility of the defendant's statement to the police.

The court found the statement to be voluntary, rejecting arguments of exhaustion, physical discomfort, mental state, or police trickery.

However, the court determined that the defendant's s. 10(b) Charter rights were violated in two ways: first, when the defendant expressed confusion about whether he had spoken to a lawyer, triggering a duty for police to offer a second consultation; and second, when the police questioning shifted to a significantly more serious offense (murder) without re-advising the defendant of his right to counsel.

Applying the R. v. Grant factors, the court concluded that the Charter-infringing state conduct, despite not being in bad faith, was serious and had a significant impact on the defendant's Charter-protected interests.

On balance, the admission of the statement would bring the administration of justice into disrepute, leading to its exclusion under s. 24(2) of the Charter.

The accused, Elaine Biddersingh, was found guilty of second-degree murder of her step-daughter, Melonie Biddersingh, after a jury trial.

The court considered the character of the offender, the nature and circumstances of the offence (prolonged abuse, malnutrition, and eventual drowning of the victim, followed by concealment of the body), and the jury's recommendations to determine the period of parole ineligibility.

The court rejected the defence's mitigating factors, including the passage of time and the accused's pro-social lifestyle, due to lack of genuine remorse and acceptance of responsibility.

The court imposed a life sentence with parole ineligibility set at 16 years, along with a lifetime firearms prohibition and a DNA order.

During a murder trial, the defence brought an application to exclude newly disclosed expert evidence relating to histological slide analysis conducted by a forensic pathologist the day before testifying.

The defence argued the late disclosure breached the accused’s right to make full answer and defence under s. 7 of the Charter because cross-examinations of earlier forensic witnesses had already been conducted based on the absence of such evidence.

Applying the framework in R. v. Bijelland, the court considered whether exclusion was necessary or whether lesser remedies could cure the prejudice.

The court found that admitting the evidence at the end of the Crown’s case would materially prejudice the defence strategy and that an adjournment or recall of witnesses would not remedy the unfairness.

The evidence derived from the late histological review was therefore excluded.

The Crown sought direction regarding the admissibility of evidence from a physician who recalled observing “rope marks” on a child during a visit in 1992 and being told by the child’s mother that the injuries were caused by a sibling who had since died.

The Crown argued the evidence formed part of a pattern of abusive conduct and was relevant to aggravated assault allegations within the charged timeframe.

The court held that linking the injuries to the accused required introducing evidence surrounding the sibling’s death, which had already been ruled inadmissible as prior discreditable conduct.

The probative value of the physician’s testimony was outweighed by its prejudicial effect, particularly the risk of propensity reasoning.

The evidence was therefore ruled inadmissible.

The accused applied for permission to sit at counsel table during a jury trial rather than in the prisoner’s dock, arguing that seating in the dock could undermine the presumption of innocence and hinder communication with counsel.

The court reviewed competing authorities concerning the placement of an accused in the courtroom and emphasized that the traditional position is the prisoner’s dock, subject to the trial judge’s discretion.

The court held that removal from the dock should occur only in exceptional circumstances where necessary to permit full answer and defence and where no security concerns exist.

As no such exceptional circumstances were demonstrated and the courtroom configuration would obscure the accused from the jury if seated behind counsel, the application was refused.

The Crown sought to introduce evidence of the accused's prior discreditable conduct and hearsay ante-mortem statements of his deceased children in a trial for first-degree murder and other offences.

The accused cross-applied to sever an obstruct justice count relating to the earlier death of his son.

The court granted the severance application, finding the evidence surrounding the son's death highly prejudicial.

The court admitted some prior discreditable conduct evidence, including physical abuse and threats, as vital narrative and to show a pattern of abusive control.

Certain ante-mortem statements were also admitted under the state of mind hearsay exception, while others were excluded.