Patrick Clement

This mid-trial ruling addresses a Corbett application regarding the admissibility of a prior youth manslaughter conviction for the accused, Jahwayne Smart, in a first-degree murder trial.

The court applies the four Corbett factors and concludes that the prejudicial effect of admitting the manslaughter conviction outweighs its probative value, given the risk of propensity reasoning by the jury.

The ruling allows the Crown to cross-examine the accused on his adult record but excludes the youth manslaughter conviction.

The accused, Mireille Pardieu, was charged with manslaughter after restraining Fadumo Hassan, who subsequently died due to complications of chest compression exacerbated by cocaine and ethanol intoxication.

The defense argued self-defence under section 34 of the Criminal Code.

The Crown conceded an air of reality to self-defence but argued the force used was disproportionate, specifically the duration of restraint after the victim stopped resisting.

The court found Ms. Pardieu's actions reasonable, noting her belief of ongoing threat and the unknown contributing factors of the victim's drug and alcohol use, which a reasonable person would not have known would make the restraint fatal.

The Crown failed to disprove self-defence beyond a reasonable doubt.

The applicants, charged with first degree murder and attempted murder, brought pretrial applications to exclude evidence.

They challenged warrantless police searches (s. 8 Charter), the grounds for their arrest, and alleged excessive force during arrest and transport.

The court dismissed all applications, finding that the applicants lacked standing to challenge the searches of the rental vehicle and condominium premises, that the police had reasonable grounds for arrest, and that the force used during the dynamic takedown and subsequent transport was justified given the high-risk nature of the arrest and the applicants' resistance.

The accused brought a Charter application to exclude evidence obtained by police during a murder investigation, alleging breaches of various Charter rights, including those related to search and seizure and rights upon detention.

The court analyzed the validity of production orders for banking records, warrantless review of surveillance video, the lawfulness of detention and seizure of electronic devices, and the validity and execution of a search warrant for cellphones.

The decision outlines specific findings on each alleged breach, determining some police actions were lawful while others violated the accused's Charter rights.

The applicant brought a motion to stay his criminal charges, arguing that his right to a trial within a reasonable time under s. 11(b) of the Charter was violated.

The total delay was approximately 40 months.

The court deducted periods of defence delay and delay caused by the discrete exceptional event of the COVID-19 pandemic, bringing the net delay below the 30-month presumptive ceiling.

The court found that the defence failed to demonstrate meaningful and sustained steps to expedite the proceedings, and the application was dismissed.

The accused, a First Nations man charged with second-degree murder, applied for bail.

The Crown conceded the primary ground but opposed release on the secondary and tertiary grounds, citing the strength of the case, the gravity of the offence, and the accused's poor attitude during his police interview.

The court found the proposed sureties, the accused's uncle and aunt, were adequate to supervise him under strict house arrest conditions.

Applying the Gladue factors and the St. Cloud framework, the court concluded that detention was not necessary to maintain public confidence in the administration of justice.

Bail was granted with strict conditions including electronic monitoring via cameras.

C.W., charged with second-degree murder, applied for bail.

The Crown conceded the primary ground but raised concerns on the secondary and tertiary grounds, particularly regarding public confidence in the administration of justice given the gravity of the offence and the applicant's disrespectful attitude during his police interview.

The court found the proposed sureties and release plan adequate, considering the applicant's minor and dated record, aboriginal status, and the application of Gladue factors.

The court concluded that detention was not necessary to maintain public confidence, and granted bail with specific conditions including house arrest and substance abuse treatment.

The applicant, C.W., charged with second-degree murder, sought bail.

The Crown conceded the primary and secondary grounds could be met with appropriate sureties, but opposed on the tertiary ground, arguing that release would undermine public confidence in the administration of justice.

The court considered the proposed house arrest plan with sureties (the applicant's aunt and uncle), the applicant's minor and dated criminal record, his Indigenous status, and the application of Gladue factors.

Despite concerns about the applicant's disrespectful attitude during a police interview and the gravity of the offence, the court found that the sureties were capable of supervision and that Indigenous law and customs provided sufficient incentive for compliance.

Applying the St. Cloud test and Gladue principles, the court determined that detention was not necessary to maintain public confidence and granted bail with strict conditions including house arrest, substance abuse treatment, and camera monitoring by sureties.

A home invasion robbery occurred at a Toronto townhouse complex on March 3, 2016.

Three armed robbers entered a residence, demanded money at gunpoint, and fled with cash, a phone, and chocolate milk.

The robbers were observed on surveillance footage entering another unit in the complex.

Two defendants were arrested approximately six hours later at that unit.

The Crown sought to commit them for trial based on resemblance evidence and their presence at the unit where the robbers fled.

The court found that the identification evidence amounted only to resemblance, not identification, and that critical gaps in surveillance evidence prevented reasonable inferences connecting the defendants to the robbery.

Both defendants were discharged.

The applicant brought a Rowbotham application seeking a conditional stay of proceedings until state-funded counsel was provided for her trial on charges of fail to comply with a recognizance, criminal harassment, and assault with a weapon.

The Crown conceded that the applicant was indigent and ineligible for Legal Aid.

The court considered whether counsel was essential to a fair trial, examining the seriousness of charges, complexity of proceedings, and the applicant's ability to participate effectively.

The court found that while the applicant faced health challenges and limited education, she was intelligent and articulate, the case involved only credibility issues without legal complexity, and judicial assistance could adequately equip her for trial.

The application was dismissed.

The accused was charged with break and enter with intent to commit an indictable offence, mischief, and fraud.

The Crown sought detention on primary and secondary grounds under section 515(10) of the Criminal Code.

The accused's refugee status had been revoked by the Immigration and Refugee Board based on fingerprint evidence linking him to a criminal record in Colombia.

The accused presented evidence suggesting his identity had been fraudulently used by another person in Colombia.

The court found the accused presented a serious flight risk and that there was a substantial likelihood he would commit further criminal offences if released.

The proposed sureties were found to be unreliable.

The accused was ordered detained in pre-trial custody.

The accused, a lawful gun owner and security company operator, was charged with two counts: careless transportation of a firearm on June 21, 2012 (Count 2) and careless storage of a firearm on June 27, 2012 (Count 3).

On Count 2, police observed a shotgun mounted visibly in the accused's unattended vehicle for over an hour, contrary to transportation regulations.

On Count 3, police found a shotgun stored in an unlocked bedroom with ammunition readily accessible in a side saddle attached to the gun and additional ammunition on a dresser.

The trial court found the Crown proved both charges beyond a reasonable doubt, rejecting the defence arguments regarding admissibility of photographs, reliability of officer testimony, proof that the item was a firearm, and proof that the vehicle was unattended.

The court also rejected the defence submission that a trigger lock alone satisfied storage requirements when ammunition remained readily accessible.

The defendant pleaded guilty to impaired driving causing bodily harm.

The Crown sought a fifteen-month jail sentence, while the defence sought an intermittent sentence of ninety days plus probation.

The court imposed an eleven-month jail sentence with a two-year driving prohibition.

The sentencing considered the serious injuries to the victim, including permanent disability and chronic pain, balanced against the defendant's own significant injuries from the collision, his guilty plea, community service, and remorse.

The court rejected the defence position that the defendant's medical condition warranted an intermittent sentence, finding that while medical factors could place the defendant lower in the sentencing range, they did not justify a fundamentally different outcome.

The accused was charged with robbery and possession of an imitation firearm arising from a robbery at a cellular phone store.

The Crown relied primarily on fingerprint evidence consisting of a partial palm print located on a glass shelf inside a display case from which phones were taken during the robbery.

Applying the principles governing circumstantial evidence and fingerprint evidence from appellate authorities, the court considered whether the inference that the accused left the print during the robbery was the only reasonable inference.

The court found there was no evidence supporting any alternative explanation for the presence of the print in a secured vendor area behind the display case.

The accused was convicted of robbery but acquitted on the charge of possession of an imitation firearm due to lack of evidence.

The accused was charged with criminal negligence causing bodily harm, aggravated assault, and unlawfully causing bodily harm arising from unauthorized buttocks augmentation procedures performed using PMMA injections.

The Crown sought detention on primary and secondary grounds, arguing risk of flight and danger to the community.

The accused proposed two sureties with pledges totalling $11,000.

The court found the Crown's case strong, the accused's conduct reckless and dangerous, and the proposed release plan inadequate due to the sureties' unwillingness to provide residential supervision and their lack of commitment.

Detention was ordered.

In a first-degree murder trial involving alleged street gang members, the Crown sought to clarify and maintain the admissibility of certain evidence following a pre-trial ruling.

The court reconsidered the admissibility of a YouTube video after correcting a factual misapprehension about its contents, ruling it remained highly probative of gang affiliation and motive.

The court also permitted the Crown to adduce a composite audio recording for voice identification, provided no visual component was shown.

Finally, the court held that numerous handwritten documents and rap lyrics seized from the respondents' apartment were admissible without further redaction, as their probative value regarding gang membership and animus toward rival gangs significantly outweighed their prejudicial effect as bad character evidence.

The accused, charged with second-degree murder, challenged the admissibility of two statements made to police and sought the exclusion of derivative evidence (cell phone records and a witness) under s. 24(2) of the Charter.

The court found the first statement involuntary due to the Crown's failure to account for a significant period of the accused's custody, but ruled the second statement voluntary.

The court also found breaches of the accused's s. 8 and s. 10(b) Charter rights during his initial investigative detention.

However, applying the Grant framework, the court declined to exclude the derivative evidence, finding the breaches were not serious, the impact on the accused's rights was minimal, and the evidence would have been inevitably discovered.

In a pre-trial voir dire in a murder prosecution, the Crown sought to prove the voluntariness of an utterance allegedly made by the accused to police during a brief encounter in an apartment building.

The defence argued the statement should be excluded on the basis that it was not proven to have been made by the accused and that it was obtained during an arbitrary detention contrary to s. 9 of the Charter, seeking exclusion under s. 24(2).

The court held that the statement was voluntary and that circumstantial evidence, including self-identification, physical description, and a distinctive tattoo, established on a balance of probabilities that the speaker was the accused.

Applying the framework from Grant, the court further concluded that the encounter did not constitute a detention, as it was brief, non-coercive, and part of general police patrol activity.

The accused’s application to exclude the statement was dismissed and the Crown’s application was granted.

The accused applied for an order requiring YouTube to remove approximately 75 videos associated with a street gang until the completion of a murder trial, arguing that jurors might view the material online despite judicial instructions and thereby jeopardize the fairness of the trial.

The court refused leave to bring the application due to failure to comply with the Criminal Proceedings Rules for the Superior Court of Justice, including the absence of proper notice and evidentiary foundation.

The court further held that the application had no reasonable prospect of success because it relied on an incorrect statutory provision, lacked evidence of a real and substantial risk to trial fairness, failed to consider alternative measures, and sought an order affecting third‑party Charter expression rights without notice.

The judge also raised concerns about territorial jurisdiction given that YouTube operated outside Canada.

Leave was denied and the application summarily dismissed.

In a murder prosecution, the Crown brought a pre-trial application seeking to qualify a forensic document examiner as an expert in handwriting analysis to assist in establishing authorship of seized writings.

One accused opposed the application, arguing the proposed expert lacked sufficient qualifications and that her work had not been peer reviewed and used a different classification methodology than other forensic standards.

The court applied the test for admissibility of expert evidence from R. v. Mohan and held that the witness possessed the requisite specialized knowledge through education, training, and experience at the Centre of Forensic Sciences.

Concerns raised by the defence related to methodology and review processes went to the weight of the evidence rather than admissibility.

The witness was therefore qualified to provide opinion evidence in handwriting analysis.