Michael A. Moon

The court ruled on the admissibility of a prior inconsistent statement under s. 11 of the Canada Evidence Act during a first-degree murder trial.

The Crown sought to introduce evidence from a witness, Mr. Watts, that another witness, Mr. Moy-Lingomba, had previously identified the defendant as the shooter.

The court initially precluded this evidence during the Crown's examination-in-chief of Mr. Watts, finding that the precondition of s. 11, requiring the alleged statement to be squarely put to Mr. Moy-Lingomba during cross-examination, had not been met.

The ruling emphasized the rationale of s. 11 concerning trial economy, fairness to the adversary, and fairness to the witness, and also noted the limited probative value and substantial prejudicial value of the evidence in question.

The respondent, facing a first-degree murder charge, subpoenaed a federal Crown counsel who had previously stayed a drug charge against him.

The respondent sought to question the Crown counsel about his reasons for staying the charge to support an abuse of process argument regarding the admission of disreputable conduct evidence.

The Crown counsel brought a certiorari application to quash the subpoena.

The Superior Court held that while the court clerk properly issued the subpoena based on defence counsel's representations, the subpoena must be quashed because the respondent failed to establish that the Crown counsel likely had material evidence to give, as prosecutorial discretion is presumed to be exercised properly absent evidence of bad faith.

The applicant, facing multiple charges of fraud and breach of recognizance, sought a review of his detention order under s. 520 of the Criminal Code.

He had been arrested for attending casinos and gambling in violation of his bail conditions, allegedly using a false passport to evade detection.

The reviewing judge upheld the justice of the peace's decision to cancel the previous recognizance under s. 524 and order detention on the secondary ground, finding a substantial likelihood of further offences.

The court also refused to admit fresh evidence regarding gambling addiction and electronic monitoring, and further held that detention was justified on the tertiary ground to maintain public confidence in the administration of justice.

The appellants, charged with drug offences, sought disclosure of police policy directives regarding confidential informants during their preliminary inquiry.

After the Crown refused disclosure, the preliminary inquiry judge issued subpoenas duces tecum to the police chiefs.

A Superior Court judge quashed the subpoenas, finding the preliminary inquiry judge lacked jurisdiction to order what amounted to third-party disclosure.

The appellants appealed.

Although the appeal was moot because the appellants had since pleaded guilty, the Court of Appeal exercised its discretion to hear it.

The Court dismissed the appeal, holding that a preliminary inquiry judge cannot use a subpoena duces tecum to circumvent the jurisdictional limits on ordering production of third-party records, which must be sought before a trial judge under the O'Connor regime.

The accused was charged with 11 criminal offences including criminal negligence causing death, human trafficking, and drug trafficking offences arising from a party at his apartment where a sex trade worker died from a drug overdose.

At a judicial interim release hearing, the Crown sought to detain the accused pending trial on secondary and tertiary grounds.

The court found significant deficiencies in the Crown's case and treated the apparent strength as neutral.

However, the court concluded that the proposed plan of release was insufficient to address concerns regarding the accused's involvement in pimping, prostitution, and drug trafficking activities.

The court ordered the accused held in pre-trial custody.

The accused, jointly charged with unlawful confinement and aggravated assault, brought applications to sever counts on the indictment.

One accused was additionally charged with attempted murder and several counts of possession of controlled substances for the purpose of trafficking.

The accused argued that trying the drug charges together with the violent offences would cause severe prejudice and propensity reasoning.

The court dismissed the applications, finding that the drug charges provided the context and motive for the violent offences, as the victim was a competing drug dealer.

The court held that the interests of justice favoured a single trial, and any potential prejudice could be addressed through proper jury instructions.

The applicants brought an application for certiorari seeking to quash their committal for trial on a charge of first-degree murder.

They argued that the preliminary inquiry judge exceeded his jurisdiction by failing to consider the totality of the evidence, particularly frailties in the identification evidence.

The reviewing judge found that the preliminary inquiry judge correctly applied the law, noting that there was sufficient direct and circumstantial evidence upon which a reasonable jury could return a verdict of guilty.

The application for certiorari was dismissed.

The Crown brought an application at a preliminary inquiry for an order permitting audio/video recording of testimony from certain witnesses in a first-degree murder case.

The Crown argued that the evidence of witnesses directly involved in the alleged offence or closely associated with the accused was vulnerable and that videotaping would preserve a complete record for potential use under Criminal Code section 715(1) if witnesses became unavailable or hostile at trial.

The defence argued the court lacked jurisdiction to order videotaping.

The court granted the application in part, permitting videotaping of witnesses directly implicated in the offence but denying it for family members and associates not implicated in the crime.

The accused was charged under s. 243 of the Criminal Code with disposing of the dead body of a child with intent to conceal its delivery.

The remains of a 36-week fetus were found in a bag on a balcony.

The forensic pathologist could not exclude the possibility that the fetus died in utero due to a self-induced abortion.

Applying the Supreme Court of Canada's interpretation of s. 243 in a previous appeal of this case, the court found that the Crown could not prove beyond a reasonable doubt that the child was likely to have been born alive, as the law does not apply to miscarriages or abortions.

The accused was acquitted.

The applicants sought certiorari with mandamus in aid to review rulings made by a preliminary inquiry judge in a first‑degree murder prosecution.

They argued the preliminary inquiry judge erred by permitting a key witness to testify by closed circuit television under s. 486.2(2) of the Criminal Code based on hearsay evidence and by refusing to hold a voir dire regarding the witness’s appearance, including alleged use of a wig and tinted glasses.

The reviewing court held that evidentiary and procedural rulings at a preliminary inquiry are not reviewable on certiorari unless they amount to jurisdictional error or a denial of natural justice.

The challenged rulings were within the preliminary inquiry judge’s jurisdiction and did not impair the accused’s right to make full answer and defence.

The application for certiorari was therefore dismissed.

Police services applied to quash subpoenas duces tecum issued by a preliminary inquiry judge compelling production of police policy directives governing confidential informants.

The subpoenas were issued after the Crown had refused defence disclosure requests for the documents on grounds of irrelevance and informer privilege.

The Superior Court held that a preliminary inquiry judge lacks jurisdiction to determine disclosure applications, whether framed as first-party disclosure under Stinchcombe/McNeil or third-party production under O'Connor.

By issuing subpoenas that effectively compelled production of materials the Crown had declined to disclose and which were arguably held by third parties, the preliminary inquiry judge exceeded his jurisdiction.

The subpoenas were therefore quashed.

The appellant challenged an order of the Superior Court of Justice in a criminal matter.

The Court of Appeal, in a brief endorsement, adopted the motion judge's analysis and conclusions and dismissed the appeal.

A Criminal Code publication restriction applicable to the preliminary inquiry evidence was ordered to continue.

The applicant sought judicial interim release while charged with accessory after the fact to murder.

The Crown conceded that detention was not justified on the primary or secondary grounds but argued for detention on the tertiary ground to maintain confidence in the administration of justice under s. 515(10)(c) of the Criminal Code.

The court assessed the strength of the Crown’s case, the gravity of the offence, the circumstances of the alleged conduct, and the potential sentence.

While the underlying murder was serious, the applicant’s alleged role was limited and he eventually assisted police in locating the body.

Considering the proposed release plan with multiple sureties and the lengthy pre-trial custody already served, the court held that detention was not necessary to maintain public confidence and ordered release with strict conditions.

The offender was convicted by a jury of two counts of assault causing bodily harm and two counts of assault with a weapon arising from a downtown fight in which he struck two victims with a metal bicycle lock and inflicted significant injuries, including a broken jaw.

The principal issue at trial was self-defence, which the jury rejected.

The sentencing court emphasized denunciation and deterrence given the seriousness of the weapon-based assault and the offender’s extensive criminal record, including prior violent offences.

Applying the Kienapple principle, the assault with a weapon counts were conditionally stayed and convictions were entered on the assault causing bodily harm counts.

The court imposed a global sentence of 30 months’ imprisonment with 19 months’ credit for pre-sentence custody, resulting in 11 months to be served, along with lifetime firearms prohibitions, DNA orders, and two years’ probation with no-contact conditions.

The offender pleaded guilty to attempted murder after attacking her adult daughter with an Exacto knife and a kitchen knife, slashing the victim’s throat and stabbing her before being interrupted by the victim’s boyfriend.

The victim survived but suffered severe and lasting physical and psychological consequences.

The court considered the broad sentencing range for attempted murder and emphasized denunciation and deterrence, particularly given the planned nature of the attack and the domestic relationship between offender and victim.

Although the offender had no criminal record, pleaded guilty, and expressed remorse, the offence involved deliberate planning, abuse of familial trust, and serious injury.

The court imposed an 11‑year penitentiary sentence, with enhanced credit for pre‑sentence custody and ancillary orders.

The applicants sought certiorari to quash a provincial offences information alleging contraventions of s. 122(1)(c) of the Securities Act, arguing that the Ontario Court of Justice exceeded jurisdiction when it refused to quash a second information sworn without obtaining new prosecutorial consent.

The court held that the impugned ruling concerned the validity of the information and therefore fell within matters for which certiorari relief is barred where an appeal route exists under s. 141(3) of the Provincial Offences Act.

In any event, the court found the justice properly determined that the second information merely split an existing count to reflect statutory amendments and introduced no new offences.

The original consent to prosecute therefore remained valid.

The certiorari application was dismissed.

The Crown applied for certiorari and mandamus to quash a preliminary inquiry judge’s decision declining to commit the accused to trial for second degree murder in the death of an infant child.

The preliminary inquiry judge had instead committed the accused for manslaughter and criminal negligence causing death, finding no evidence of the intent required for murder.

The reviewing court held that the preliminary inquiry judge exceeded the limited role of the committal stage by weighing evidence and effectively preferring defence‑favourable inferences.

There was some evidence capable of supporting the inference that the accused intended to cause bodily harm knowing it was likely to cause death, including evidence of animus, repeated abusive conduct, and warnings about the dangers of shaking an infant.

The discharge on the murder charge was quashed and the matter was remitted with direction to commit the accused for trial on second degree murder.

The Crown sought admission of a video and audio-taped statement given by the defendant to police at a hospital's SCAN unit.

The defence applied for exclusion under sections 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, arguing the statement was involuntary and obtained in breach of Charter rights.

The court conducted a voluntariness voir dire and Charter analysis.

The court found that the defendant was psychologically detained within minutes of the interview's commencement and that the police officer made significant inducements, including threats regarding custody of the defendant's child.

The court excluded the statement as involuntary and as obtained in breach of Charter rights.

In a homicide prosecution, the Crown sought to introduce several hearsay statements attributed to a deceased victim and to unidentified bystanders during a fight.

The court considered whether the statements fell within the res gestae exception to the hearsay rule and whether they satisfied reliability requirements under the principled approach articulated in R. v. Khelawon.

The court admitted a statement reported by a witness that the victim said “Budja stabbed me” and described others holding him down, finding it spontaneous and proximate to the startling event and not so unreliable as to warrant exclusion.

However, statements allegedly shouted by unidentified bystanders during the fight were ruled inadmissible for the truth of their contents because the declarants were unknown and reliability could not be assessed.

Those statements were admissible only for the non-hearsay purpose of demonstrating what may have been audible to the accused during the altercation.

The offenders were sentenced following a jury trial where Bengy was convicted of second degree murder and Modeste was convicted of manslaughter in relation to the stabbing death of Brandon Ramdeen.

Bengy, who stabbed the unarmed victim while he was overpowered, was sentenced to life imprisonment with no parole eligibility for 11 years.

Modeste, who participated in the group assault but did not stab the victim, was sentenced to 5 years imprisonment, with 49.5 months remaining after credit for pre-trial custody.