Peter Bawden

The defendant was charged with two counts of assaulting police officers engaged in the lawful execution of their duties and one count of breaching a recognizance of bail.

The defendant was initially stopped for speeding and found to be in possession of two cellular telephones.

A computer check revealed the defendant was on bail for drug trafficking with a condition prohibiting possession of more than one cell phone.

The defendant argued the officer's arrest was unlawful due to misinterpretation of the bail condition, and therefore his assault on the officers was justified.

The court found the arrest was lawful based on objectively reasonable grounds, the defendant's assault was unjustified, and the defendant breached his bail condition by possessing two cell phones.

A young person was charged with second degree murder in connection with the death of S.K., who died from a single stab wound to the chest during a marijuana trafficking transaction that went wrong.

The accused admitted holding the knife that caused the fatal injury but claimed he was acting in self-defence and that the stabbing was accidental.

The Crown alleged intentional stabbing with either intent to kill or intent to cause bodily harm known to be likely to cause death.

The court found the accused not guilty of murder but guilty of unlawful act manslaughter, finding that while self-defence was not established, the accused did not have the specific intent required for murder.

This decision addresses the voluntariness and admissibility of statements made by two accused, Youssef El Hariti and Abdelmalek Haddouche, charged with sexual assault and gang sexual assault.

The court found Abdelmalek Haddouche's statement involuntary due to police persistence undermining his right to silence, despite his repeated assertions of not wanting to speak on counsel's advice.

For Youssef El Hariti, the court found his statements were obtained in breach of his s. 10(b) Charter right to counsel, as police failed to ensure he received legal advice in a language he fully understood, despite being aware of his limited English proficiency.

Both statements were ruled inadmissible under the confessions rule and s. 24(2) of the Charter, respectively.

The accused pleaded guilty to impaired driving causing death, failing to stop at the scene of an accident, failing to stop for police, refusing to provide a breath sample, and driving while disqualified.

The victim, a 44-year-old cyclist, was struck and killed by the accused who was driving at approximately 110 km/h in a 60 km/h zone while impaired.

The accused had a prior drinking and driving conviction from one month earlier and fled the scene at high speed, eventually reaching 200 km/h while evading police.

The court imposed a sentence of 7 years less pre-trial custody credit, resulting in 4½ years additional custody, plus a 10-year driving prohibition.

The accused was charged with firearms offences after police found a handgun in a plastic bag during a "wellness check" in a residential building stairwell.

The accused brought a Charter application to exclude the evidence, arguing the search violated his s. 8 rights.

The court found the accused had a reasonable expectation of privacy in the bag and that the police lacked reasonable suspicion for an investigative detention or grounds for an arrest under the Trespass to Property Act.

Finding that the officers fabricated an after-the-fact justification for the search and were not forthright with the court, the judge excluded the firearm under s. 24(2) of the Charter, leading to the dismissal of the charges.

During a trial for four counts of first-degree murder, the accused brought an application to exclude expert evidence regarding gunshot residue (GSR) found in his vehicle 14 months after the homicides.

The court reviewed the extensive history of the vehicle, including multiple police seizures and the accused's frequent discharge of firearms in other incidents.

The court concluded that the GSR evidence lacked any probative nexus to the specific homicides and that its admission would be highly prejudicial.

The application to exclude the evidence was granted.

On a pre-trial voir dire in a jury murder prosecution, the Crown sought admission of two utterances allegedly made by the accused to persons in authority.

The court held the first utterance, made upon arrest for a separate firearm discharge offence, was voluntary and had an adequate evidentiary link to that shooting to permit its admission, with the ultimate interpretation left to the jury.

The court rejected the argument that the Crown was required to call every officer present between arrest and the utterance.

The second utterance, made after an assault on a Crown witness in courthouse cells, was excluded because it did not reasonably support an inference of witness intimidation and its prejudicial effect outweighed its probative value.

In a jury trial on four counts of first degree murder, the accused sought exclusion of proposed motive evidence tendered by the Crown.

The court held that evidence suggesting the accused wished to impress a mentor with an authentic reputation for violence had a sufficient logical connection to the alleged shooting to satisfy relevance.

The court further held that evidence of the accused having been shot in the same area in 2001 was admissible, not as proof of a generalized animus to the neighbourhood, but as part of the explanation for the choice of location.

The defence submission that the evidence would invite speculative reasoning akin to post-traumatic stress was rejected, and the motive evidence was admitted subject to strict limits ensuring no inference other than that the accused had been an innocent victim in 2001.

In a jury trial on four counts of first degree murder, the accused brought an evidentiary motion seeking edits to jail telephone intercepts before they were played to the jury.

The court applied a relevance and prejudice-versus-probative-value analysis to disputed passages, holding that most references to custody were admissible because they provided necessary context for the accused's repeated efforts to have another person alter vehicle records and avoid implication in the homicide investigation.

A violent rap lyric was excluded because its prejudicial effect outweighed its minimal probative value, and two words referring to the duration of incarceration were also removed.

The balance of the application was dismissed, with limiting instructions to be given concerning custody and the right to silence.

In a jury trial on four counts of first degree murder arising from three separate shooting incidents, the court determined pre-trial applications concerning cross-count admissibility, extrinsic misconduct evidence, and severance.

The court held that evidence on each count was admissible across counts as circumstantial evidence of possession of the same 9mm firearm, and thus of identity, but not as similar fact evidence because the shootings lacked the requisite striking similarity or objective improbability of coincidence.

The court also admitted selected extrinsic misconduct evidence relating to possession and use of the 9mm and .45 calibre firearms, consciousness of guilt, and the relationship between the accused and a Vetrovec witness, while excluding other highly prejudicial evidence with limited probative value.

Applying the severance factors, including the strong factual and legal nexus among counts, the court concluded that the interests of justice did not require severance.

During a murder trial involving multiple accused, the Crown brought a motion asking the court to reconsider a prior evidentiary ruling admitting a hearsay statement from a former girlfriend of an alleged alternate suspect.

The Crown argued new evidence from two witnesses and digital communications demonstrated a strong motive for the declarant to fabricate the statement.

The court held that the new evidence constituted a material change in circumstances permitting reconsideration of the earlier ruling.

However, applying the relaxed threshold reliability standard applicable to defence evidence, the judge concluded the statement retained some reliability and should remain admissible.

The Crown was permitted to call reply evidence from the new witnesses to challenge the credibility and reliability of the hearsay statement.

During a murder trial involving a home invasion, the accused advanced a third party suspect defence and sought to question the alleged third party about prior criminal charges that had not resulted in convictions.

The court considered whether such evidence was admissible as disposition evidence and whether it could be used to impeach the credibility of the defence’s own witness.

The court held that questioning a witness about prior charges without convictions was improper because it undermines the presumption of innocence and has little probative value.

However, the court found that the underlying facts of certain prior incidents involving firearms and violent activity could be admissible where relevant to the issue of identity and the third party suspect defence.

The court therefore permitted questioning about the underlying facts of most incidents, except a 1996 event involving a knife and pepper spray which lacked sufficient probative value.

In a multi‑accused murder trial, the Crown sought to introduce a PowerPoint presentation prepared by an Ontario Provincial Police analyst summarizing extensive cell phone records already entered in evidence.

Defence counsel objected, arguing the presentation was redundant, prejudicial, and effectively allowed the Crown to present its theory of the case twice.

The court held that the PowerPoint itself was not evidence but an illustrative aid reorganizing evidence already admitted.

Although useful and reliable, its probative value was outweighed by prejudice arising from duplication, significant trial time, and the unfair advantage of allowing the Crown to present its theory through a witness before closing submissions.

The court excluded the presentation from evidence but permitted the Crown to use it in closing argument and ordered the Crown to disclose the presentation to defence counsel in editable PowerPoint format.

During a joint first‑degree murder trial, concerns arose that the spouse of a juror had attended court proceedings and communicated limited information about the case to the juror via text messages and made comments in the courthouse hallway supportive of a police witness.

Following two judicial inquiries, the accused sought either a mistrial or the discharge of the juror on the basis of juror contamination and reasonable apprehension of bias.

The court held that although the spouse’s conduct demonstrated poor judgment, there was no evidence that the juror discussed the case with the spouse or was influenced by her views.

Applying the presumption of juror impartiality and the reasonable apprehension of bias test, the court found no basis to conclude the juror could not remain independent and impartial.

The mistrial application and request to discharge the juror were denied, though the spouse was excluded from further attendance at the trial.

During a criminal jury trial, information emerged that the spouse of a juror had attended the proceedings and made comments supportive of a police witness, including remarks to the investigating officer.

The court had previously conducted an inquiry after learning the juror had received text messages from the spouse about events occurring in the courtroom.

Following new evidence from a detective about additional comments by the spouse, the court considered whether further inquiry of the jury was necessary.

Applying appellate guidance on allegations of improper juror contact, the court held that the potential taint of prejudice required a supplementary inquiry.

The judge directed that limited additional questions be put to the implicated juror to determine whether the spouse’s opinions had been communicated and whether they affected impartiality.

During a multi‑accused jury trial for murder and attempted murder arising from a staged home invasion, one accused sought to introduce propensity evidence regarding a co‑accused’s violent criminal history to support an alternate‑suspect defence and raise reasonable doubt about his own participation.

The court held that an accused may adduce propensity evidence against a co‑accused where it is relevant to a live issue and its probative value is not substantially outweighed by prejudice.

While much of the proposed material was excluded, limited evidence—including certain gun‑related convictions, a nickname referencing a sniper, and specific tattoos—was admitted because it had probative value on the issue of identity.

The court concluded that the remaining prejudice could be mitigated through limiting jury instructions.

A severance motion brought by the co‑accused was dismissed and the joint trial was ordered to continue.

During a multi‑accused murder trial, one accused sought leave to introduce alternate suspect evidence implicating an uncharged third party.

The proposed evidence consisted primarily of hearsay statements allegedly made by that third party to former partners confessing involvement in the offence.

The court considered the admissibility of the statements under the principled exception to the hearsay rule, focusing on necessity and threshold reliability.

The judge concluded that the utterances possessed sufficient reliability and could be admitted, provided the declarant was first called and denied making them in accordance with the K.G.B. procedure.

The court further held that related propensity evidence affecting a co‑accused could be admitted with appropriate limiting instructions.

The Crown sought to admit a videotaped police statement made by the accused following a high-risk arrest for murder and attempted murder.

The defence argued the statement was involuntary due to oppressive circumstances, including the manner of arrest, relentless questioning, and the accused's physical illness.

The court applied the common law confessions rule and found the statement voluntary for the first three hours and twenty-three minutes, as the accused was able to make a meaningful choice to speak or remain silent.

However, the court found a reasonable doubt as to voluntariness for the remainder of the interview, as the accused became visibly ill and unable to continue.

The statement was ruled partially admissible.

The accused applied for a subpoena requiring police to produce a confidential informant file following the dismissal of a Charter application seeking exclusion of evidence seized under a search warrant.

The accused argued that, under Step 6 of the Garofoli procedure, the trial judge should review the informant file to ensure police compliance with informant handling procedures and the reliability of information provided to obtain the warrant.

The court held that disclosure or judicial review of such material requires a threshold showing that the material could reasonably assist the defence, and mere speculation or a desire to verify police conduct is insufficient.

The judge rejected the argument that Step 6 transforms the court into an inquisitorial investigator and emphasized the continued primacy of the adversarial system and the strength of informer privilege.

The application for a subpoena and judicial review of the informant file was dismissed.

The accused brought a Charter application seeking exclusion of drugs and cash seized from his home pursuant to a Controlled Drugs and Substances Act search warrant, alleging the Information to Obtain failed to disclose reasonable and probable grounds and contained misleading information.

The court applied Step 6 of the Garofoli process to review redacted informant material and determine whether the excised information could support the warrant.

After reviewing the unredacted ITO and a judicial summary, the court found the informant’s tip compelling, credible, and sufficiently corroborated by police investigation.

Although certain statements in the ITO were misleading, they did not undermine the overall basis for the warrant once excised.

The court concluded there was no breach of s. 8 of the Charter and that, in any event, the evidence would not be excluded under s. 24(2).