Paul Burstein

The defendant was charged with driving in excess of 80 milligrams.

The information was sworn on January 11, 2016, and the trial was scheduled to commence on November 2, 2017—approximately 22 months later.

The trial was the third scheduled trial date.

The first trial date was not reached.

The second trial date commenced but was abandoned when defence counsel requested a mistrial after an incident with a police witness.

The defendant brought a Charter section 11(b) application alleging a breach of the right to trial within a reasonable time.

The court found the delay exceeded the presumptive ceiling of 18 months established in R. v. Jordan and that the Crown failed to take reasonable steps to mitigate delay arising from exceptional circumstances.

The charge was stayed.

The applicants, charged with first-degree murder and attempted murder in a drive-by shooting, sought to limit the proposed testimony of the lead police investigator regarding video surveillance.

The Crown intended to have the officer testify that he identified the suspect vehicle following the victims' vehicle on the video.

Applying the principles from Walizadah, the court ruled that the officer could not testify that the vehicles on the video were similar or consistent with the vehicles involved in the shooting.

The officer was permitted only to place the videos in context regarding time and location and direct the jury's attention to specific times and vehicles, leaving the ultimate finding of fact to the jury.

During a trial for first-degree murder, the Crown applied to admit a photograph of the deceased victim in the vehicle.

The defence objected on the basis that the photograph was inflammatory and lacked probative value.

The court ruled the photograph was of little to no probative value and excluded it, instead permitting the Crown to use leading questions to establish the non-contentious facts regarding the victim's position and gunshot wounds.

The accused, charged with first-degree murder, applied for a change of venue for his re-trial.

In his first trial, the jury convicted him of causing an indignity to a body but could not reach a verdict on the murder charge, resulting in a mistrial.

The applicant argued that extensive pre-trial publicity regarding the 'split verdict' created a likelihood of prejudice in the local area.

Relying on expert evidence regarding the effects of pre-trial publicity, the court found that knowledge of the first trial's outcome would likely taint a new jury's ability to be impartial, as it implied the first jury rejected the accused's evidence.

The application was granted and the venue was ordered changed.

The appellants were convicted of manslaughter following a trial by judge and jury.

Their convictions on break and enter to commit robbery were stayed pursuant to the Kienapple principle.

The appellants appealed their manslaughter convictions on various grounds and sought leave to appeal their sentences.

The Crown also sought leave to appeal the sentence imposed on one appellant.

The Court of Appeal found that the jury charge on the critical counts of manslaughter was insufficient to meet the functional requirements for an adequate jury charge, particularly in failing to adequately relate the evidence to the key issues and the parties' positions.

The conviction appeals were allowed and a new trial was ordered on all original charges.

The accused and a co-accused were jointly charged with first-degree murder and attempted murder following a drive-by shooting.

During a pretrial motion, the Crown sought to admit a photograph of a handgun found on the accused's cell phone.

The court ruled the photograph admissible as circumstantial evidence of the accused's access to the type of weapon used in the shooting.

The court also addressed the admissibility of bad character evidence elicited by the co-accused in a cut-throat defence, noting it was admissible but required careful limiting instructions to the jury.

The accused, charged with first degree murder and attempted murder, brought a Corbett application to excise portions of his criminal record before testifying in his own defence.

The Crown agreed to exclude a prior sexual assault conviction but opposed excluding youth convictions for weapons offences.

The court allowed the application in part, permitting the Crown to cross-examine the accused on two of the four weapons-related convictions, finding that willful breaches of prior court orders are highly relevant to assessing credibility.

The appellant was convicted of assaulting his wife and appealed on several grounds, including ineffective assistance of counsel.

The court found that trial counsel's failure to cross-examine the complainant on pre-charge text messages, which could have negatively impacted her credibility, constituted ineffective assistance.

These messages contained no allegations of physical abuse, a claim of self-harm not supported by evidence, and expressed a desire to reconcile, contradicting her testimony of fear.

The court determined that this omission fell below the standard of competence and created a reasonable probability that the verdict would have been different, thus undermining the reliability of the conviction.

The Crown appealed a trial judge's decision to stay an "over 80" charge against the respondent, Hany Ibrahim, due to a violation of his s. 11(b) Charter right to trial within a reasonable time.

The appellate court reviewed the trial judge's calculation of institutional delay, finding errors in the characterization of neutral time and inherent preparation time.

After recalculating, the institutional delay was determined to be 10 months, at the upper limit of the Morin guidelines.

The court upheld the stay of proceedings, emphasizing the straightforward nature of the case, the respondent's expeditious conduct, the institutional nature of the delay, and the significant prejudice suffered by the respondent.

Sharon Baksh pleaded guilty to manslaughter during her second-degree murder trial.

The sentencing hearing considered aggravating factors, including a home invasion, the victim's age (89), and 149 stab wounds, alongside mitigating factors such as her drug/alcohol dependency and troubled childhood.

The court accepted a joint submission for a 12-year custodial sentence, which, after 1.5x credit for pre-sentence custody, resulted in a net sentence of 7 years, 8 months, and 13 days.

Non-communication, DNA, and lifetime weapons prohibition orders were also issued.

The accused brought a pre-trial application seeking permission to sit at counsel table with defence counsel during a jury trial for second-degree murder rather than in the prisoner’s dock.

The Crown opposed the request, relying on customary courtroom practice and security concerns.

The court reviewed authorities recognizing that the location of the accused in the courtroom is a matter within the trial judge’s discretion and that the traditional use of the dock does not create a presumption of guilt.

Given the absence of flight risk, anticipated violence, or disruption, and considering the modern courtroom setting, the court held that there was no reason to insist on the traditional arrangement.

The accused was therefore permitted to sit beside counsel without restraints in the presence of the jury.

The Crown brought an application seeking to admit evidence of discreditable conduct consisting of mail belonging to the deceased that was found in the apartment occupied by the accused and another individual.

The deceased had lived across the hall from the accused and there was no evidence of any relationship that would explain the presence of the deceased’s mail in the accused’s residence.

The court considered whether the evidence was relevant and whether its probative value outweighed any prejudicial effect.

Applying the principles governing admissibility of discreditable conduct evidence, the court found the evidence was capable of supporting an inference relevant to the identity of the person responsible for the death.

The probative value was found to outweigh any potential prejudice to a fair trial.

The accused brought a third party records application seeking production of correctional, parole and probation, telephone, and Children's Aid Society records relating to an alleged jailhouse informant expected to testify about admissions to a murder.

Applying the framework from R. v. O’Connor, the court assessed the likely relevance of the records and balanced the accused’s right to make full answer and defence against privacy interests of the witness and other inmates.

The court found the probative value of certain correctional, parole, probation, and limited telephone records outweighed privacy concerns, given the need to scrutinize jailhouse informant evidence.

Limited disclosure with redactions was ordered, while Children's Aid Society records were withheld.

Strict conditions were imposed governing use, disclosure, and eventual destruction of the records.

The accused was charged with sexual assault and sexual touching of his granddaughter between December 2013 and February 2014, when the complainant was 12 years old.

The Crown alleged that the accused licked the complainant's legs and stomach on multiple occasions and placed his hand down her shirt.

The accused denied all allegations.

The court found that while the complainant had motive and animus to fabricate the allegations due to her unhappiness with living arrangements at the accused's home and disciplinary disputes over her computer use, the accused's testimony was straightforward, uncomplicated, and credible.

The court concluded that the Crown had not proven its case beyond a reasonable doubt and acquitted the accused on all counts.

The accused was charged with sexual assault and sexual touching of his granddaughter between December 2013 and February 2014, when the complainant was twelve years old.

The Crown alleged that the accused licked the complainant's legs and stomach on separate occasions and placed his hand down her shirt.

The accused denied all allegations.

The court found that while the complainant had motive and animus to fabricate the allegations due to her unhappiness with living arrangements and disciplinary conflicts over internet use, the accused's testimony was straightforward, uncomplicated, and credible.

The court was not satisfied beyond a reasonable doubt that the allegations were proven and acquitted the accused on all counts.

The Crown appealed an acquittal in an impaired driving prosecution where the trial judge found that police lacked reasonable and probable grounds to arrest and excluded breath samples under s. 24(2) of the Charter.

The trial judge had rejected several indicia of impairment due to inconsistencies in the officers’ testimony and concluded that odour of alcohol and poor driving provided only suspicion warranting a roadside screening demand.

The appeal court held that the trial judge erred by effectively conducting a full trial-level assessment of whether indicia actually existed rather than assessing whether the arresting officer reasonably believed an offence had been committed at the time of arrest.

Evidence of dangerous swerving combined with a strong odour of alcohol provided an objective basis for reasonable and probable grounds.

The arrest was lawful and the trial judge’s analysis improperly conflated the threshold for arrest with proof of impairment.

A ruling on spousal privilege in a preliminary inquiry concerning charges of murder and assault with a weapon.

The court determined that the defendant's common-law spouse was a competent and compellable witness despite spousal privilege protections under s. 4 of the Canada Evidence Act.

The court applied the common-law exception to spousal incompetence where surrounding circumstances disclose a threat to the person, liberty, or health of the witness spouse.

The court also addressed jurisdictional issues regarding the joinder of murder and assault charges under s. 589 of the Criminal Code.

The accused pleaded guilty to dangerous driving and impaired operation of a motor vehicle after driving eastbound in the westbound lanes of Highway 407 while heavily impaired by alcohol, causing multiple drivers to take evasive action to avoid head-on collisions.

The accused, a Fire Chief with no criminal record, had blood alcohol readings of 225 and 209 milligrams per 100 millilitres of blood.

The Crown sought 14-30 days jail, a two-year driving prohibition, and 12 months probation.

The defence sought a non-custodial sentence with fines, community service, and an 18-month driving prohibition.

The court imposed fines totalling $4,025 (including victim surcharge), an 18-month driving prohibition, 18 months probation with alcohol counselling and abstinence conditions, and 100 hours community service.

The appellant appealed convictions for assault, assault with a weapon, mischief, voyeurism, and breaches of probation arising from incidents involving his former partner.

He argued the trial judge committed a Morrissey error by misapprehending evidence related to alleged bias and motive of the complainant, and further erred by failing to analyze whether a video recording was made in circumstances giving rise to a reasonable expectation of privacy for purposes of the voyeurism offence under s. 162 of the Criminal Code.

The court held that the trial judge properly considered the discrepancies in the evidence and reasonably rejected the defence theory that the complainant fabricated allegations out of spite.

The court also held that although the trial judge did not explicitly analyze the privacy element of voyeurism, it was not a live issue at trial and the evidence clearly established a reasonable expectation of privacy.

The appeal was dismissed.

The applicant sought certiorari to quash his committal for trial on a charge of first-degree murder, arguing there was insufficient evidence of planning and deliberation and that the preliminary inquiry judge failed to consider the whole of the evidence.

The Superior Court of Justice dismissed the application, finding that there was some circumstantial evidence capable of supporting an inference of planning and deliberation, such as the setting of multiple fires and the use of an accelerant.

The court also held that a failure to consider the whole of the evidence is not a jurisdictional error reviewable by certiorari when an accused is committed for trial under section 548(1)(a) of the Criminal Code.