Peter Bawden

In a second‑degree murder prosecution involving the death of an infant following severe brain and retinal injuries, the court conducted a voir dire on the admissibility of opinion evidence from treating clinicians.

The defence argued that only forensic pathologists should be permitted to testify regarding the mechanism of injury and that clinicians lacked forensic expertise.

Applying the principles governing expert evidence, including the Mohan framework and considerations from the Goudge Inquiry into Pediatric Forensic Pathology, the court held that the treating neurosurgeon and paediatric ophthalmologist could provide opinion evidence within the limits of their specialized expertise.

The court concluded that their opinions regarding the likely causes of the brain injury and retinal haemorrhages were reliable, highly probative, and did not risk undue prejudice or confusion for the jury.

The clinicians were therefore permitted to testify regarding the likely mechanisms of the observed injuries.

The Crown brought an application seeking to adduce evidence of prior discreditable conduct by the accused in a forthcoming second‑degree murder trial involving the death of an infant who had been in the accused’s care.

The proposed evidence included an earlier unexplained bruise on the child, statements allegedly made by the accused describing abusive conduct toward the infant, the shaving of the infant’s head without the mother’s consent, and contextual evidence suggesting resentment toward the child.

Applying the probative value versus prejudicial effect framework governing prior discreditable conduct, the court assessed whether the conduct was attributable to the accused, whether it was relevant and material, whether it was discreditable, and whether its probative value outweighed prejudice.

The court excluded evidence relating to the bruise and the shaved head, finding the prejudicial risk outweighed limited probative value.

However, statements allegedly made by the accused on the day of the incident and contextual evidence relating to animus and motive were admitted as relevant to state of mind and narrative.

The accused brought a pre‑trial motion challenging the language Crown expert witnesses could use when describing injuries to an infant in a criminal prosecution.

The defence objected to analogies describing the force required to cause the injuries, the use of the term “massive” for a subdural hematoma, descriptions of extensive bruising, evidence regarding the absence of any explanation for the injuries, and a graphic description of injuries to the child’s genitalia.

The court held that analogies explaining the magnitude of force could assist the jury in understanding scientific evidence and were permissible.

The term “massive” to describe the subdural hematoma was allowed as a medically accurate and understandable descriptor, and the Crown could lead evidence regarding the lack of explanation for the injuries as part of the medical history relied upon by clinicians.

However, the court directed that inflammatory wording describing genital injuries should be replaced with a more neutral description.

The accused brought a Charter application seeking exclusion of a handgun seized from his vehicle following an investigative detention in a parking lot after a police “gun-call” dispatch.

Police detained the accused, failed to promptly advise him of the reasons for detention and his right to counsel, and conducted a warrantless search of his vehicle that uncovered marihuana, cocaine, and a firearm.

The court found breaches of ss. 8, 10(a), and 10(b) of the Charter, concluding that the officers lacked lawful authority to search the vehicle and had deliberately disregarded constitutional obligations during detention and arrest.

The court further found the police evidence unreliable regarding alleged marihuana odour and statements attributed to the accused.

Applying the s. 24(2) framework, the court held that the seriousness of the Charter breaches and their impact on the accused’s rights outweighed society’s interest in adjudicating the firearm charges on the merits.

The appellant appealed his 18-month sentence for retrieving, loading, and firing a rifle in close proximity to his wife during a domestic dispute.

He sought a reduction to time served (four months) followed by probation, noting he had been released on the Temporary Absence Program.

The Court of Appeal dismissed the appeal, finding the offence very serious and holding that the trial judge did not err in concluding that denunciation required incarceration.

The appellant was convicted of conspiracy to traffic in heroin and trafficking in heroin.

At trial, the judge directed a verdict of acquittal on possession charges but allowed the jury to consider evidence relating to those charges when deliberating on the remaining counts.

On appeal, the appellant argued this violated the Supreme Court's ruling in Grdic.

The Court of Appeal dismissed the appeal, holding that Grdic does not apply to overlapping evidence in a single proceeding with multiple counts, as established in Arp.

The court also dismissed grounds of appeal relating to the 'in furtherance' jury instruction and the trial judge's reference to money found in a stuffed bear.

The appellant challenged convictions for possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime arising from a vehicle search.

He argued the trial judge improperly relied on evidence related to a dismissed charge and that the remaining evidence was insufficient to establish knowledge of the contraband.

The court held that the circumstantial evidence, including possession of car keys, proximity to the vehicle, and items associated with trafficking, supported a compelling inference of knowledge and control.

Even assuming error in considering the impugned evidence, no substantial wrong or miscarriage of justice occurred.

The appeal was dismissed.

The appellant appealed a jury conviction for possession of cocaine for the purpose of trafficking, arguing that the trial judge failed to leave simple possession with the jury as an included offence.

The court held that a jury must be instructed on both the principal offence and any included offences supported by the evidence.

Given the live issue over whether any possession proven was for the purpose of trafficking, the omission was an error.

Applying the governing included-offence authorities, the court found the error could not be cured and ordered a new trial.

The sentence appeal was not addressed.