Paul Erskine

The Crown appealed the accused's acquittal on a charge of refusing to provide a roadside breath sample.

The accused had feigned blowing six times, outright refused on the seventh, but then requested a chance to blow 21 minutes after the initial demand, immediately after speaking with counsel.

The trial judge found the request was genuine and sufficiently proximate to constitute one continuous transaction, negating the refusal.

The Superior Court dismissed the appeal, finding no error of law and confirming that the 'one continuous transaction' principle from Domik remains good law.

The accused, Joseph Thibodeau, was charged with refusing to provide a breath sample.

He brought a Charter application alleging breaches of sections 8, 9, and 10(b).

The court found that police officers trespassed on the accused's private property, exceeding their implied license, thereby violating his section 8 and 9 Charter rights.

The court also found a section 10(b) violation due to delayed notification of rights to counsel and failure to facilitate access to counsel of choice.

Although the officers had reasonable suspicion for the ASD demand, the grounds were obtained through an unlawful search.

Consequently, the ASD demand was invalid, entitling the accused to refuse.

The court concluded that the evidence obtained in violation of the Charter should be excluded under section 24(2), leading to an acquittal.

The defendant, E.R., was charged with sexual assault.

The central issue was whether the complainant, Ms. Mathewson, consented to the sexual activity and whether E.R. had an honest but mistaken belief in her consent.

The court found Ms. Mathewson's evidence regarding lack of consent unreliable due to inconsistencies and accepted E.R.'s detailed and corroborated account of consensual activity.

The court concluded that Ms. Mathewson had capacity to consent and did so through affirmative conduct, and E.R.'s belief in her consent was honest and reasonable.

E.R. was found not guilty.

Four young persons were charged with multiple counts of armed robbery at Scotiabanks in Mississauga in May and June 2018, as well as related offences.

Three armed robberies occurred within two weeks in May 2018, all at Scotiabanks in Mississauga, committed by perpetrators wearing hoods and masks.

A fourth attempted robbery occurred on June 15, 2018, which was interrupted by police surveillance.

The Crown relied on video surveillance, witness identification, similar fact evidence, and circumstantial evidence to establish identity.

The trial involved complex evidentiary issues including the admissibility of recognition evidence under Leaney principles, similar fact evidence for identity purposes in a rotating group context, and Nikolovski video identification analysis.

The court dismissed charges related to the May 15 robbery due to insufficient evidence.

Convictions were entered on various counts with acquittals on others based on the court's careful analysis of identification evidence and the application of legal principles governing circumstantial evidence.

This ruling addresses a Browne and Dunn argument made by the Crown in closing addresses during a murder trial where the accused was convicted of manslaughter.

The judge provided a mild corrective instruction to the jury, explaining that counsel cannot argue Browne and Dunn to the jury without first raising it with the trial judge.

The judge found that in this specific case, no actual Browne and Dunn violation occurred as there was no ambush or surprise in the defence evidence.

The ruling concluded that the Crown's misstep caused no lasting harm given the jury's verdict of manslaughter.

The offender was convicted of manslaughter for stabbing his half-brother during a fist fight.

The deceased initiated the physical altercation, but the offender escalated it by using a knife.

The court found the offender's actions were primarily for self-defence but disproportionate.

Considering the offender's remorse, the context of the fight, and the need for denunciation and individual deterrence, the court imposed a sentence of 6 years incarceration.

After applying credit for pre-sentence custody, the net sentence was 15 months, followed by 3 years of probation.

The defendant was charged with assault and threatening to cause bodily harm to his former intimate partner.

The Crown proceeded by summary conviction and sought to introduce evidence of prior discreditable conduct involving similar incidents.

The court found the prior conduct evidence admissible to provide narrative context and demonstrate the nature of the relationship, though limited weight was given to it.

The court found the complainant credible and reliable, and determined that the defendant committed an unlawful assault by forcefully grabbing and restraining the complainant against her will, and that he threatened to cause her bodily harm through statements made immediately following the assault.

The defendant was found guilty on counts 2 and 3.

The Crown applied to adduce evidence of prior incidents of violence between the complainant and defendant in an intimate partner violence prosecution.

The defendant initially challenged whether the parties had been in an intimate relationship sufficient to invoke the principles from R. v. D.S.F. The court found that the parties shared a child and the nature of the allegations established an intimate partner relationship.

The Crown met its burden of establishing that the probative value of the prior incidents outweighed their prejudicial effect under the four-part test from R. v. B.(L.).

The evidence was admissible to establish narrative context, demonstrate ongoing animus, explain reporting delays, and assist in credibility assessment, subject to the Crown presenting it without disproportionate emphasis.

The accused brought pre-trial Charter motions seeking to exclude evidence from two separate police interactions.

For a July 2009 traffic stop, the court found the stop was unlawful due to a lack of credible police evidence regarding the reason for the stop, resulting in an arbitrary detention.

The evidence from that stop was excluded under s. 24(2) of the Charter due to serious state conduct involving a failure to take notes.

For an August 2009 interaction where police approached a parked vehicle in a high-crime area, the court found no detention occurred, as the accused was free to leave and voluntarily provided his identification.

Consequently, there were no s. 8 or s. 10(b) breaches, and the accused's statements were ruled voluntary and admissible.

During pre‑trial proceedings on a multi‑count indictment involving robbery, firearms, kidnapping, and related offences, the court conducted a voluntariness voir dire concerning a police statement made by one of the accused.

The defence argued the statement was involuntary because the accused allegedly did not receive a proper caution or right to counsel, and contended that breaches of ss. 7 and 10(b) of the Charter undermined the accused’s right to silence.

The Crown argued the statement was voluntary and that no inducements, oppression, or improper police conduct occurred.

The court held that the accused had been informed of the right to counsel, had consulted counsel, and understood the right to remain silent.

Considering the totality of the circumstances and the confessions rule, the Crown proved voluntariness beyond a reasonable doubt and the statement was admissible.

During a pre‑trial voir dire, the Crown sought to admit two statements made by one accused following separate arrests.

The defence challenged the voluntariness of the second statement given during a police interview after consultation with counsel.

The court reviewed the confession rule and assessed inducements, oppression, operating mind, and the overall interview context.

Although the accused was properly cautioned and treated appropriately before the interview, the officer’s aggressive tone, physical positioning, and comments undermining confidence in defence counsel raised concerns.

Considering the totality of the circumstances, the court found a reasonable doubt about voluntariness and excluded the November 18, 2009 statement while admitting the earlier statement.

In a multi‑accused jury trial involving numerous serious offences including robbery, kidnapping, firearms offences, and conspiracy, the court determined several pre‑trial jury selection issues.

The Crown sought an order empanelling fourteen jurors and selecting two alternate jurors under s. 631 of the Criminal Code due to the expected length and complexity of the trial.

The court granted the application, finding additional jurors advisable to reduce the risk of mistrial if jurors were excused.

The court also permitted a race‑based challenge for cause under s. 638(1)(b) given that the accused were members of visible minority groups, and established appropriate challenge questions referencing potential bias.

Finally, the court ruled that rotating triers would be used and ordered the exclusion of other jurors from the courtroom during the challenge process in the exercise of inherent jurisdiction.

The Crown sought to admit a roadside statement made by a vehicle passenger identifying himself to police during a traffic stop.

The defence argued the Crown had not proven the accused was the declarant and that the statement was involuntary because no caution was given.

The court held that for admissibility the Crown need only show “some evidence” that the accused was the declarant, not proof beyond a reasonable doubt.

On the evidence, identity was established and the statement was voluntary beyond a reasonable doubt because there were no inducements, oppression, or lack of operating mind.

The absence of a caution did not render the statement involuntary where the accused was not detained or suspected of an offence.

In a pre-trial motion, the Crown sought to admit a police statement made by one of the co-accused.

The accused argued the statement was involuntary due to police inducements, oppression, and trickery during the interrogation.

The court applied the Oickle framework and found that the police conduct was appropriate, the accused's will was not overborne, and no shocking trickery was used.

The statement was ruled voluntary and admissible.

The accused brought a pre‑trial application seeking leave to cross‑examine the affiant and sub‑affiant on an Information to Obtain supporting a search warrant.

The defence alleged that the ITO relied improperly on confidential informants, lacked sufficient detail regarding their reliability, and contained misleading or inflammatory statements.

The court applied the governing principles from Garofoli and Pires concerning leave to cross‑examine affiants.

It held that the applicant failed to establish a basis that the proposed cross‑examination would likely elicit evidence undermining the existence of reasonable and probable grounds for the warrant.

Leave to cross‑examine was therefore denied.

The accused applied under s. 462.34(4)(c)(ii) of the Criminal Code for the release of seized funds to pay legal expenses in defending multiple drug and property-related charges.

The Crown conceded the accused owned the seized funds and that no other person had a lawful interest in them but argued the accused had “other means” to fund his defence because he had been granted legal aid.

The court held that the existence of a legal aid certificate constitutes “means” available within the meaning of s. 462.34(4), unless the accused demonstrates that the level of funding imperils the right to a fair trial.

Finding no evidentiary basis that the legal aid funding created such a risk, the court concluded the statutory preconditions were not met.

The application for restoration of seized funds for legal expenses was dismissed.

The accused brought a Garofoli application challenging the constitutional validity of a search warrant executed at his residence, arguing that the information to obtain the warrant failed to establish reasonable and probable grounds and relied improperly on confidential informants.

The accused sought exclusion of seized evidence under s. 24(2) of the Charter, alleging breaches of ss. 7, 8, 9, and 11(d).

The court assessed the reliability of the confidential informant’s information using the Debot framework—credibility, compellability, and corroboration—and reviewed the totality of the circumstances.

It held that the issuing justice had sufficient credible and reliable evidence to support the warrant, including detailed observations from the informant, partial police corroboration, and the accused’s criminal history involving weapons.

Even if minor inaccuracies existed in the ITO, they were not materially misleading and did not undermine the statutory preconditions for issuing the warrant.