Michael Strathman

Kevonne Marshall pleaded guilty to perjury after falsely testifying in a Superior Court home invasion trial to exonerate the accused, Jacob Owusu-Sarpong, by claiming he committed the crime.

The court found his testimony was prearranged and deliberate, but did not affect the trial's outcome as the original accused was convicted.

The sentencing judge considered aggravating factors, including the seriousness of perjury, the pre-planned nature of the lie, and the implication of an innocent person (Marshall himself).

Mitigating factors included Marshall's youth (20 years old), guilty plea, challenging personal background (learning disability, ADHD, behavioural issues, limited education, family violence), severe cognitive limitations, difficult pre-sentence custody conditions (lockdowns, asthma), and the negative impact of his social environment (Jane-Finch neighbourhood, anti-Black racism).

The court balanced denunciation and deterrence with rehabilitation, ultimately imposing a sentence of 406 days pre-sentence custody (enhanced to 609 days/21 months) plus 1 day in jail, followed by 2 years of probation with specific conditions aimed at rehabilitation.

A DNA order was also issued.

Rodney John Love pleaded guilty to assault causing bodily harm.

The Crown sought a suspended sentence and probation, while the defence sought a conditional discharge.

The court considered aggravating factors, including the use of excessive force with a golf club causing injury, and mitigating factors, such as the offender being a first-time offender, his remorse, acceptance of responsibility, a positive pre-sentence report, and proactive steps in anger management and sobriety.

The court also considered the collateral consequence of a conviction preventing the offender from coaching hockey.

Applying sentencing principles, including proportionality, denunciation, deterrence, rehabilitation, and restraint, the court determined that a conditional discharge with 2 years probation was in the offender's best interest and not contrary to the public interest, given the totality of circumstances.

At a bail hearing for an accused charged with second-degree murder, the defence objected to the Crown cross-examining a proposed surety about conversations with the accused regarding the alleged offence.

The defence relied on recent case law suggesting such questions unfairly exploit the bail hearing for discovery.

The court disagreed, ruling that the Crown is permitted to ask such questions.

The court found that these questions do not violate the accused's fair trial rights, fall within the broad scope of evidence permitted at bail hearings, and may be relevant to assessing the strength of the Crown's case and the ongoing risk to public safety.

Samuel Kebede brought a Garofoli application to exclude drug evidence, arguing that the search warrant was invalid due to material misrepresentations in the information to obtain (ITO) and insufficient informant information, thereby violating his s. 8 Charter rights.

The court found two minor, good-faith misrepresentations in the ITO that were not material to the justice of the peace's decision to issue the warrant.

The court also determined that the confidential informant tips were sufficiently compelling, corroborated, and credible, despite some weaknesses in credibility and corroboration, especially given the urgency associated with firearms.

The application to exclude evidence was dismissed, as the process of obtaining the warrant was not found to be subversive of the prior authorization system.

Before the commencement of a joint criminal trial for assault offences arising from an altercation outside a nightclub, the court addressed a conflict of interest concerning defence counsel.

The lawyer for one accused also represented the co‑accused in unrelated ongoing criminal matters.

Applying the duty of loyalty principles from R. v. Neil, the court held that concurrent representation created a substantial risk that counsel’s advocacy would be materially and adversely affected by divided loyalties.

The possibility that one accused could implicate the other, or be cross‑examined by their own lawyer, created an unacceptable risk to the integrity of the proceedings.

Independent legal advice and waivers could not cure the conflict.

Counsel was disqualified from representing the accused at trial.

The court addressed a conflict of interest issue arising before the commencement of a five-day trial involving two co-accused charged with assault with a weapon and assault causing bodily harm.

Defence counsel for one accused was also representing the other accused in separate ongoing criminal proceedings.

The court found that the divided loyalties between two current clients created a substantial risk that counsel's representation would be materially and adversely affected, and disqualified counsel from representing the first accused.

The court held that independent legal advice could not remedy the fundamental problem of divided loyalty between concurrent clients.

The Superior Court of Justice delivered sentencing reasons for three defendants convicted of culpable homicide following a home invasion and robbery.

Tin Wai Hong was convicted of second-degree murder, receiving a life sentence with 13 years parole ineligibility, and a concurrent 4-year sentence for assault causing bodily harm.

Mason Gillard-Gatza and Nathaniel Cain were convicted of manslaughter, each receiving an 11-year sentence (net 4 years 3 months after pre-trial custody credit) and a concurrent 2-year sentence for assault causing bodily harm.

The court considered aggravating factors such as the violent, drug-related home invasion, gratuitous violence, and prior criminal records, alongside mitigating factors including youth, lack of prior record, family support, expressions of remorse, and, for one defendant, reduced life expectancy.

Ancillary orders included a lifetime weapons prohibition, DNA sample, and no-contact orders with victims.

At a preliminary inquiry, the Crown sought committal on a charge of First Degree Murder.

The defendant was charged with the murder of Brent Gartner on January 10, 2015.

The sole issue was whether there was evidence of planning and deliberation to support committal on First Degree Murder, or whether committal should be on Second Degree Murder only.

The court found circumstantial evidence capable of supporting an inference of planning and deliberation, including the defendant's stated intention to "deal with something" his request for money from the deceased, multiple phone calls between the parties on the day of the incident, and the defendant's possession of a knife with the victim's blood on it.

The defendant was committed for trial on First Degree Murder.

Following a lengthy jury trial for murder and attempted murder arising from a home invasion, the court addressed post‑charge objections raised by the Crown and several defence counsel regarding the jury instructions.

The objections concerned the adequacy of instructions on forcible confinement, party liability, the mental state required for planned and deliberate murder, and the temporal‑causal connection required for constructive first degree murder under s. 231(5) of the Criminal Code.

The court held that the charge, when read as a whole, correctly conveyed the applicable legal principles and adequately reflected the parties’ positions.

With one limited exception, the court declined to give additional corrective instructions, finding the charge clear and legally sufficient.

The defendants, on trial for first-degree murder arising from a home invasion and robbery, raised numerous objections to the Crown's closing address to the jury.

The defence argued that the Crown misstated evidence, improperly referenced out-of-court statements, and undermined the presumption of innocence, seeking a mistrial or the right to make reply submissions.

The court reviewed the objections and found that while some of the Crown's comments required corrective instructions in the final jury charge, the conduct did not render the trial fundamentally unfair.

The applications for a mistrial and for reply submissions were dismissed.

During a lengthy jury trial for murder and attempted murder arising from a home invasion, the court ruled on several pre‑charge issues affecting the jury instructions and evidentiary materials.

The court addressed whether transcripts of recorded police statements should accompany the jury, whether certain medical records required redaction, and whether instructions on wilful blindness and alternative routes to first‑degree murder should be given.

The court allowed transcripts of most recorded statements to go to the jury but excluded the transcript of one accused’s statement due to lack of probative value.

Medical records referring to “severe hypoxia” were admitted without redaction.

The court declined to instruct the jury on wilful blindness for the driver accused, finding insufficient specificity of suspicion to impute knowledge.

During a multi-accused jury trial for murder and attempted murder arising from a home invasion, the Crown sought to revisit a pre‑trial editing ruling that had excluded a portion of one accused’s police statement referencing a conversation with a co‑accused driver.

The Crown argued that subsequent cross‑examination created a material change in circumstances because the witness acknowledged misleading the driver about the purpose of the trip, making the excluded statement relevant as a prior inconsistent statement and to credibility.

The court held that the threshold for revisiting the ruling was met but declined to change the original decision.

Although the probative value of the statement had increased, its prejudicial effect against the co‑accused—against whom it remained inadmissible—continued to outweigh its value, particularly given the stage of the trial and fairness concerns.

The Crown’s application was therefore dismissed.

During a jury trial for murder arising from a home invasion, the accused sought to call a cardiologist to testify that a congenital heart condition could have caused hypoxia leading to confusion and impaired cognition during the incident.

The Crown opposed the evidence, arguing it lacked relevance, necessity, and proper qualification and risked misleading the jury.

Applying the Mohan framework as refined in White Burgess and Abbey, the court held the proposed expert testimony was logically relevant, necessary to explain the accused’s serious medical condition, and within the expert’s qualifications.

The court further concluded that any limitations in the opinion affected weight rather than admissibility and that the probative value of the defence-led evidence was not substantially outweighed by prejudice.

The expert evidence was therefore admitted for consideration by the jury.

During a jury trial for murder and attempted murder arising from a home invasion, the accused sought to call a cardiologist to provide expert evidence regarding congenital heart disease and its potential impact on mental functioning.

The Crown challenged the admissibility of the expert testimony, arguing issues of relevance, qualification, and reliability under the Mohan framework.

The court determined that a focused Mohan voir dire was required to clarify the precise opinion and assess the expert’s qualifications.

The judge held that the expert could testify on the voir dire only to identify the proposed opinion and establish qualifications, and that broader cross-examination was unnecessary for the admissibility determination.

During a jury trial for offences arising from a home invasion and robbery, the Crown sought to revisit a prior evidentiary ruling that had ordered references to the accused’s consultation with duty counsel removed from a police statement.

The Crown argued that subsequent testimony placing the reliability of the statement in issue increased the probative value of the fact that the accused had received legal advice before speaking to police.

The court reconsidered the issue under the residual discretion to exclude evidence where prejudicial effect outweighs probative value.

The judge held that the probative value of the consultation with counsel remained slight and that admitting the evidence would invite improper speculation about privileged communications.

The earlier ruling requiring redaction was therefore maintained.

In a jury trial for murder and attempted murder arising from a violent home invasion, the Crown challenged the sufficiency of a defence expert report disclosed under s. 657.3(3) of the Criminal Code.

The defence intended to call a cardiologist to testify about the accused’s congenital heart disease and the possible cognitive effects of exertion‑induced hypoxia, which could raise a reasonable doubt about the specific intent required for murder.

The court held that the report provided sufficient disclosure of the expert’s anticipated areas of evidence and the grounds underlying them, though it did not disclose the expert’s ultimate opinion regarding the accused’s symptoms at the time of the offences.

Considering the advanced stage and logistical constraints of the lengthy jury trial, the court declined to order further particulars or other remedial measures.

The issue of the expert’s qualifications to testify about hypoxia‑related cognitive effects was left to a focused Mohan voir dire.

In a jury trial for first degree murder and attempted murder arising from a home invasion, the accused brought applications for directed verdicts at the close of the Crown’s case.

They argued the circumstantial evidence was insufficient to support inferences of planning and deliberation or the requisite intent for murder and attempted murder, and that the rule in Hodge’s Case required exclusion of those theories.

The court held that the governing test on a directed verdict motion is whether there is any evidence upon which a properly instructed jury could reasonably convict, and that the rule in Hodge’s Case does not apply at this stage.

The court found there was evidence capable of supporting inferences that the killing was planned and deliberate and that the accused participated with the necessary intent.

However, the Crown was barred from advancing second degree murder liability against the driver under the common unlawful purpose doctrine due to insufficient evidence of subjective foresight of death.

During a murder trial involving a home invasion, defence counsel for one of the co-accused sought to create a summary chart of a key Crown witness's testimony on an easel pad during cross-examination.

The Crown and counsel for another co-accused objected, arguing the chart was unnecessary, cumulative, and potentially misleading.

The court allowed the use of the demonstrative aid, finding that it was a useful organizational tool, met threshold reliability, and its probative value was not substantially outweighed by any trial management or trial fairness prejudice.

During a multi‑accused murder trial, the jury sent a note expressing concerns about safety after observing three men enter the courtroom whom they believed might be connected to the accused.

Defence counsel argued the note suggested potential racial bias or juror fear that could compromise impartiality and requested a jury inquiry.

The court conducted a focused inquiry questioning each juror individually about what they observed, whether they had concerns, whether race influenced their reaction, and whether they could remain impartial.

All jurors confirmed they had no concerns and could continue to decide the case solely on the evidence and legal instructions.

The court concluded the presumption of juror impartiality had not been rebutted and refused defence requests for a further inquiry.

In a jury murder trial arising from a planned robbery, the court ruled on the admissibility of text messages extracted from two accused persons' cell phones.

Applying the principles governing relevance, bad character evidence, and the balance between probative value and prejudicial effect, the court excluded one partial text exchange as too context-deficient and speculative to support the inference urged by the Crown.

Two other exchanges, accepted for the purpose of the ruling as drug-related communications, were admitted because their prejudice was minimal in the trial context and they provided relevant contextual evidence about the relationship between two accused.

The court directed that limiting instructions would address any propensity risk.