Michael Flosman

Pre-trial evidentiary ruling in a homicide prosecution concerning the admissibility of photographs of the deceased taken prior to death.

The Crown sought to introduce several social photographs to show the victim’s physical stature and to humanize the victim before the jury.

The defence argued the photographs lacked probative value and risked eliciting sympathy from the jury, offering instead to concede the victim’s size and stature through an agreed statement of facts.

Applying the probative value versus prejudicial effect analysis from established authorities, the court concluded that one photograph had limited but legitimate probative value and minimal prejudicial effect.

The court permitted the Crown to introduce a single photograph depicting the victim’s small stature, subject to appropriate jury instructions.

The accused was charged with five offences arising from a home invasion at an apartment in Orillia on June 19, 2013.

The victim was severely assaulted with a fire extinguisher, baseball bat, and beer bottle, sustaining serious injuries including head wounds requiring surgical staples and permanent hearing loss.

The Crown's case was circumstantial, relying on evidence that the accused was present near the scene at the time of the incident, returned bloodied shortly after, made incriminating statements, and his DNA was found on a baseball cap recovered from the scene that also bore the victim's blood.

The court found the Crown proved beyond a reasonable doubt that the accused participated in the home invasion and assault on the male victim, but acquitted him of assaulting the female victim due to insufficient evidence of his presence in the bathroom where she was attacked.

The accused was charged with impaired care or control of a motor vehicle and care or control with excess blood alcohol following a single-vehicle accident on a dark, curving highway.

The Crown relied on circumstantial evidence including the accident itself, odour of alcohol, physical signs of impairment, and admissions by the accused.

The accused claimed the accident was caused by distraction from a text message.

The court found the accused guilty of both offences.

The accused sought Charter remedies for alleged mistreatment during detention, including failure to respond to complaints about handcuffs, loss of property, unnecessary delay in release, and photographing of tattoos.

The court found breaches of the right against arbitrary detention but denied both the stay of proceedings and exclusion of evidence remedies.

Sentencing for aggravated assault where the accused struck the complainant during a confrontation between boaters on a crowded lake.

The blow resulted in catastrophic injury, leaving the complainant permanently blind in one eye.

The court weighed aggravating factors including the permanent nature of the injury and the offender’s prior criminal record, against mitigating factors such as the spontaneous nature of the incident, absence of a weapon, and expression of remorse.

The court held that intermittent sentences for aggravated assault are reserved for limited circumstances such as youthful or first-time offenders with strong rehabilitation prospects.

A custodial sentence was required to emphasize denunciation and general deterrence.

The applicant sought certiorari to quash a preliminary inquiry committal to trial for first degree murder under s. 231(5) of the Criminal Code, arguing there was no evidence the killing occurred while committing or attempting to commit sexual assault.

The Crown relied on circumstantial evidence suggesting a sexual motive, including prior romantic interest, communications between the parties, and statements made during a “Mr. Big” undercover operation.

The court held that while there was some evidence the accused murdered the deceased, the evidence did not reasonably support an inference that the murder occurred in connection with a sexual assault.

The preliminary inquiry judge therefore exceeded jurisdiction by committing the accused to trial for first degree murder.

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

The accused was charged with aggravated assault following a confrontation between boaters on Lake Couchiching during a busy holiday weekend.

The complainant suffered a severe eye injury resulting in permanent loss of vision after being struck during the altercation.

The accused denied striking the complainant and asserted that he approached the other boat only after being invited, raising issues of consent and identity of the assailant.

Applying the principles in R. v. W.(D), the court rejected the defence evidence, accepted the testimony of eyewitnesses, and concluded that the accused intentionally applied force by striking the complainant in the face after climbing onto the complainant’s boat.

The court found the complainant did not consent to any physical confrontation and that the force used objectively carried the risk of bodily harm.

The Crown proved the elements of aggravated assault beyond a reasonable doubt.