M.K. McKelvey

The accused, charged with second-degree murder, brought an application to exclude several statements made to police under sections 7, 8, 9, and 10 of the Charter.

The Crown brought a corresponding application to admit the statements as voluntary.

The court found that the accused's initial statements at the scene and during the first part of his police station interview were voluntary and not obtained in breach of the Charter.

However, the court found that the accused was detained during the second part of the interview, his Charter rights were violated, and the statements were involuntary due to oppressive police conduct and improper inducements.

Consequently, the second part of the interview was excluded under section 24(2) of the Charter.

Statements made following his subsequent arrest were partially admitted and partially excluded based on voluntariness.

During closing arguments in a personal injury trial, defence counsel asked the jury to consider why the plaintiff did not call her treating physician or her manager as witnesses.

The plaintiff objected and brought a motion to strike the jury.

The court dismissed the motion to strike the jury but found the comments were an inappropriate invitation to draw an adverse inference.

The court held that an adverse inference was not justified because the witnesses were not in the exclusive control of the plaintiff, given modern discovery rules that provide equal access to medical and employment records.

During a trial for sexual offences against a minor, the Crown objected to the defence's anticipated cross-examination of the complainant's father, arguing the defence failed to put its theories of fabrication to the complainant during his cross-examination, violating the rule in Browne v. Dunn.

The defence conceded the violation but argued the complainant should be recalled to testify.

The court held that recalling the vulnerable 14-year-old complainant would subject him to an unreasonable burden and risk giving the evidence disproportionate attention.

Instead, the court ordered that a special instruction be given to the jury regarding the defence's failure to cross-examine the complainant on these issues.

During a trial for sexual offences against a minor, the defence cross-examined a Crown witness about a previously withdrawn criminal charge for obstructing a court proceeding.

The Crown objected to this line of questioning.

The court ruled that cross-examination on the fact of a withdrawn charge is generally impermissible as it has no bearing on credibility, though the underlying facts may be explored.

The court directed a mid-trial instruction to the jury to disregard the fact of the charge, but permitted the defence to further cross-examine the witness on the underlying facts.