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 applicant sought a stay under s. 11(b) of the Charter in a multi-accused fraud prosecution where the anticipated end of trial was 31 months and three days after charge.

The court held there was no defence delay and rejected the Crown's submission that the matter was exceptionally complex.

However, the slight exceedance of the 30-month superior court ceiling was justified by the transitional exceptional circumstance because much of the early delay arose before Jordan, when the parties reasonably treated co-accused election delay as neutral.

The application was therefore dismissed.

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 Crown and the Ontario Provincial Police applied for certiorari to quash a trial judge's order requiring the disclosure of a Drug Recognition Expert's (DRE) rolling logs to the accused in an impaired driving trial.

The applicants argued the logs were irrelevant third-party records and that disclosure was prohibited by s. 258.1 of the Criminal Code and s. 37 of the Canada Evidence Act.

The Superior Court dismissed the application, finding that the rolling logs are relevant to the DRE's proficiency, constitute 'fruits of the investigation' subject to first-party disclosure, and are not shielded from disclosure by statutory privacy or public interest provisions.

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 appellant was convicted of firearms offences after a handgun was found in the driver's footwell of a vehicle in which he was the sole passenger.

The driver was acquitted.

On appeal, the appellant argued the trial judge erred by failing to assess his case independently from the driver's and by rendering an unreasonable verdict based on speculation.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly considered the cumulative effect of circumstantial evidence, including the appellant's opportunity, proximity to the firearm, and after-the-fact conduct.

The sentence appeal was allowed to grant enhanced pre-sentence custody credit.

The accused pleaded guilty to dangerous driving causing death and to refusing to provide a breath sample after a motor vehicle collision that killed a child passenger.

The collision occurred when the accused drove through a stop sign at excessive speed and struck another vehicle lawfully proceeding through the intersection.

Although alcohol had been consumed prior to the collision, the impaired driving causing death charge was withdrawn as part of a joint submission.

The court reviewed sentencing ranges for dangerous driving causing death and emphasized the high threshold for rejecting a joint submission.

Finding the proposed disposition within the reasonable range and not contrary to the public interest, the court imposed a penitentiary sentence totaling 27 months and a four‑year driving prohibition.

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 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 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.

In a criminal trial arising from a fatal motor vehicle collision, the accused sought exclusion of roadside, police-station, and ambulance statements, together with refusal evidence, on the basis of alleged breaches of ss. 7 and 10(b) of the Charter.

The court held that the roadside denial of drinking was not a statutorily compelled statement, was not protected from later use as merely demand-founding evidence on these facts, and was voluntary.

The court further found no denial of the right to counsel, concluding that although the police initially resisted contact with the accused's mother, the accused did not exercise reasonable diligence in seeking counsel and instead used counsel requests to obstruct and delay the breath-testing process.

The statement to the paramedic was also held admissible because the paramedic was not a person in authority.

The application was dismissed and the challenged evidence was admitted.

The court considered whether police could, without a warrant or consent, enter a damaged vehicle at a fatal collision scene and download Event Data Recorder information showing speed, braking, and accelerator position in the seconds before impact.

Applying the totality of the circumstances privacy analysis, the court held that the accused had a reasonable expectation of privacy in the interior of the vehicle and in the EDR data, and that the warrantless download breached s. 8 of the Charter.

However, applying the Grant framework, the court found the breach was at the low end of seriousness given the unsettled state of the law at the time and admitted the evidence under s. 24(2).

The voir dire was therefore dismissed and the EDR evidence remained admissible at trial.

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.