Mitchell Huberman

The Crown brought an application to admit a video statement made by the accused to police following his arrest for second-degree murder.

The accused argued the statement was involuntary, alleging his will was overborne by persistent questioning, inducements, and delayed cautions.

The court found the Crown proved beyond a reasonable doubt that the statement was voluntary, noting the police did not offer inducements, the questioning was not oppressive, and the accused understood his rights.

The statement was ruled admissible subject to editing out specific prejudicial references.

This is a ruling on a Corbett application to determine the admissibility of the accused's criminal record for cross-examination on credibility during a trial for second-degree murder.

The court balanced the probative value and prejudicial effect of the record, considering the nature, similarity, and remoteness of previous convictions, and the need to prevent an unbalanced picture for the jury.

The judge decided to admit an edited version of the record, excluding drug offences, mischief over $5000, crimes indicating antipathy to the justice system (assault peace officer, escape lawful custody), sexual assaults, and possession of a firearm, while allowing crimes of dishonesty (theft, possession of stolen property) and some assaults and breaches of court orders, with aggravated assault reduced to assault.

The appellant was convicted of three counts of sexual offences against a single complainant.

The appeal addresses multiple errors arising from jury management during deliberations and the trial judge's charge to the jury.

The jury reported deliberation impasses, requested materials and evidence playbacks, and one juror indicated unavailability beyond the third day.

The trial judge provided transcripts of portions of the appellant's police interview used in cross-examination rather than replaying the cross-examination itself, failed to replay the appellant's testimony after the jury withdrew their request, exhorted the jury twice without clarifying that no time limit existed on deliberations, and failed to adequately relate the evidence to the defence position in the charge.

The cumulative effect of these errors resulted in a miscarriage of justice.

The appellant appealed his conviction entered by the trial judge on January 10, 2018.

The appellant argued that the trial judge erred by failing to provide a Vetrovec warning regarding the evidence of a key Crown witness.

The appellant also contended that the trial judge applied uneven scrutiny to the evidence of the Crown and defence.

The Court of Appeal dismissed the appeal, finding that the trial judge had effectively complied with the spirit of Vetrovec by carefully examining the evidence and considering both confirmatory aspects and frailties.

The court noted that a Vetrovec warning is discretionary and that counsel had agreed at trial that no such warning was necessary.

The court also rejected the argument regarding uneven scrutiny, noting that the appellant was essentially requesting that the court re-weigh evidence, which is the function of the trial judge.

The appellant appealed his sentence imposed by the Ontario Court of Justice on charges of driving while disqualified and possession for the purpose of trafficking.

The appellant argued that the sentencing judge erred by imposing consecutive sentences when a joint submission at the pre-trial stage had included a term that sentences be concurrent.

The Court of Appeal found the record unclear regarding the sentencing judge's intention on whether sentences should be consecutive or concurrent.

The Crown conceded the ambiguity.

The appeal was allowed and the sentence was reduced to reflect concurrent sentences.