Peter Maund

This decision concerns the trial of Tamaal Japp and Moses Tesfay for first-degree murder in the shooting death of Uchenna Achioso.

The court reviews the evidence, including agreed statements of fact, expert testimony, and the credibility of key witnesses.

The main issues are the identity of the accused and the extent of their criminal liability.

The court finds both accused guilty of manslaughter, not murder, concluding that while they participated in an unlawful act leading to death, the evidence does not establish the intent or planning required for murder.

The young person pleaded guilty to first-degree murder.

The court considered aggravating factors, including the young person's central role in the planned murder, the profound impact on the victim's family, the crime occurring in the victim's home, and the use of firearms.

Mitigating factors included the young person not being the principal shooter, his guilty plea, remorse, lack of prior youth record, significant rehabilitative efforts in custody (completing high school, programs), strong family support, cognitive weaknesses (head injuries, ADHD, learning disability), and the impact of systemic anti-Black racism on his background.

The court imposed an eight-year sentence, consisting of five years in custody and three years under community supervision, with credit for pre-sentence custody (30 months one-for-one, and 12 months enhanced credit for harsh adult detention conditions), resulting in six further months of custody followed by three years of community supervision.

Ancillary orders included a DNA order and a lifetime weapons prohibition.

The Crown sought to admit evidence of the accused's other discreditable conduct, specifically the discovery of a handgun and unique ammunition in his car, in a first-degree murder trial where identity was a key issue.

The court applied the framework for admissibility of similar fact evidence, assessing probative value against prejudicial effect.

The court ruled that the evidence of the unique combination of ammunition found in the accused's car was admissible due to its high probative value in establishing identity, outweighing its prejudicial effect.

However, the evidence of the firearm itself was deemed inadmissible due to low probative value and higher prejudicial risk, unless the accused denied association with the ammunition.

The defendant was charged with discharging a firearm with intent to wound.

The case involved a pursuit after a car collision, culminating in shots being fired at the complainant's vehicle.

The central issue was the identity of the shooter.

The court found the defendant guilty, relying on video evidence, forensic findings, witness testimony, and text messages from the defendant's phone, while rejecting the defence's arguments regarding witness credibility and the possibility of another shooter.

This decision concerns the sentencing of Brandon Drakes-Simon and Jason Williams for attempt murder, following their conviction for first-degree murder of the same victim.

The attempt murder involved a planned shooting on a highway.

The court identified several aggravating factors, including the use of a firearm, possession of multiple illegal guns, Drakes-Simon's prior gun convictions, extreme recklessness endangering others, and a judicial finding that the crime was a contract killing.

Mitigating factors for Williams included his lack of a prior criminal record and strong family support.

The court imposed concurrent sentences of 16 years for Drakes-Simon and 11 years for Williams, both running concurrently with their life sentences for first-degree murder.

The Crown applied to admit three categories of discreditable conduct evidence against the accused, Brandon Drakes-Simon and Justin Malcolm, in a first-degree murder trial: Drakes-Simon's acquisition of a firearm, his expressed intention to deal with legal bills, and evidence that he was seeking additional "contract killing" work.

The court dismissed the Crown's application, ruling all three categories of evidence inadmissible.

The judge found the evidence to have negligible probative value due to its general nature and to be overwhelmingly prejudicial, particularly as it amounted to forbidden bad character reasoning.

The 19-year-old accused was sentenced for a pharmacy robbery, masking, possession of a stolen vehicle, carjacking, and dangerous driving following a police pursuit.

The court found the carjacking and dangerous driving were motivated by a desire to escape apprehension for the pharmacy robbery, warranting consecutive sentences.

After considering the accused's youth, guilty pleas, and particularly harsh presentence custody conditions during the pandemic, the court imposed a total sentence of four years, reduced to five months and 24 days after applying enhanced credit for presentence custody.

This ruling addresses whether the defence of necessity had an "air of reality" to be presented to the jury in a criminal trial.

The accused, facing charges including robbery, kidnapping, and dangerous driving, claimed he acted out of fear for his life from police.

The court found no air of reality to the defence, concluding that the accused was not in imminent peril at the time of the later offences and had reasonable legal alternatives to committing the crimes.

The judge emphasized that lawful police actions do not constitute imminent peril for necessity, and any potential excessive force by police had dissipated.

During a first-degree murder trial, an alternate juror reported that another juror had expressed a belief in the accused's guilt before any evidence was called.

The offending juror was discharged.

The accused moved for a mistrial, arguing the remaining jurors may have been tainted.

The court dismissed the application, finding that several other jurors had immediately criticized the offending remark and defended the presumption of innocence, demonstrating that the jury was not tainted.

During a trial for first degree murder where the accused raised self-defence, the accused applied to admit evidence of the deceased's propensity for violence under the Scopelliti framework.

Specifically, the accused sought to introduce evidence of the deceased's habitual possession of a knife and prior use of a racial slur.

The court ruled that the evidence of habitual knife possession was admissible as it indicated a violent tendency.

The court also held that a prior ruling from a mistrial excluding the racial slur evidence was not binding under section 653.1 of the Criminal Code in the interests of justice, and admitted the evidence to demonstrate the deceased's anger and aggressive conduct.

The Crown brought a pretrial application to admit non-expert recognition evidence from the father and stepmother of one of the accused, who viewed video surveillance of the suspects.

The defence argued the evidence was inadmissible as the witnesses did not definitively identify the accused and their evidence was tainted by police.

The court held that the witnesses' long knowledge of the accused and their observations regarding clothing and physical characteristics were relevant to identification, and the evidence was admissible, with its weight to be determined by the jury.

In a first-degree murder trial, the defence brought a motion for a mistrial, alleging numerous instances of prosecutorial misconduct during the Crown's closing address to the jury.

The alleged errors included misstating evidence, introducing unelicited evidence, mocking defence counsel and witnesses, and improperly commenting on the burden of proof.

The court reviewed each alleged impropriety, finding some instances of improper conduct but concluding that, individually or cumulatively, they did not fatally wound the trial process or deprive the accused of a fair trial to the extent that a mistrial was warranted.

The motion was dismissed, with the court indicating that corrective instructions would be given to the jury.

Defence counsel for Mr. Fitzpatrick and Mr. Wright brought a motion for a mistrial, alleging that Crown counsel adduced impermissible bad character evidence ("snitches get stitches") during re-examination of a witness, thereby wounding trial fairness.

The Crown argued the re-examination was appropriate given the cross-examination.

The court denied the motion, finding that while the defence was prejudiced by a prior ruling limiting cross-examination on a witness's inconsistent statements, this could be remedied by allowing further cross-examination.

The court concluded that the "snitches get stitches" evidence, while potentially prejudicial, did not rise to the level requiring a mistrial, especially with proper jury instructions, and did not constitute a "catastrophic" defect to trial fairness.

The accused, Evan Wright, charged with first-degree murder, brought a Corbett application to exclude his criminal record from evidence at trial, arguing its prejudicial effect outweighed its probative value.

The court ruled that convictions post-dating the offence are admissible.

It refused to "read down" an aggravated assault conviction but decided to limit cross-examination to only the aggravated assault conviction, excluding two weapon possession convictions.

This decision was based on concerns about propensity reasoning and the potential for imbalance, given the nature of the current charges and the lack of a criminal record for the Crown's main witness.

Philip Fitzpatrick, jointly charged with murder, brought a K.G.B. application to admit two police statements made by his mother, Cheryl Hall, for the truth of their contents regarding the shooter's identity.

The Crown was not opposed if the statements were edited and Ms. Hall could be cross-examined.

The court applied the principled exception to the hearsay rule, finding necessity due to Ms. Hall's recantation/unwillingness to adopt her prior statements, and threshold reliability due to procedural safeguards (availability for cross-examination, videotaping) and circumstantial guarantees (statements made hours after shooting, no influence, no leading questions, no motive to lie).

The court ruled the statements admissible for their truth, to be shown to the jury in their entirety with appropriate edits, and permitted the Crown to cross-examine Ms. Hall on the identification and her state of mind.

In a murder trial, the defendants brought motions regarding the admissibility of evidence.

Philip Fitzpatrick sought to admit antemortem statements by the deceased concerning a dispute over counterfeit money and guns, arguing relevance to witness credibility and narrative.

Evan Wright sought to cross-examine a witness on the deceased's drug trafficking activities, also arguing narrative.

The Crown opposed both.

The court dismissed the application for antemortem statements under the state of mind exception, finding them not relevant and highly prejudicial, though allowing limited questioning on the deceased being ripped off and taking guns.

The court also dismissed the application to admit evidence of the deceased's drug trafficking, finding it irrelevant and highly prejudicial, noting the jury already had sufficient information about the deceased's background.

Philip Fitzpatrick brought a pre-trial application seeking leave to lead evidence and cross-examine witnesses regarding a Crown witness, Marquis Grant-Mentis, and his alleged involvement in the murder of Brandon Hall, or alternatively, to argue that one of the perpetrators was a black man other than Mr. Fitzpatrick.

The Crown opposed, arguing no air of reality to the defence.

The court applied the 'air of reality' test, considering whether the evidence could support the inference of an alternate suspect and establish a sufficient connection and opportunity.

The court found that the circumstantial evidence, including eyewitness testimony, surveillance video interpretation, shoe exchange, and the third party's knowledge of intimate details, met the 'opportunity threshold' and provided an air of reality to the third-party suspect defence.

The application was allowed.

During a criminal trial for a stabbing, the Crown applied under section 9.2 of the Canada Evidence Act to cross-examine its own witness on a prior inconsistent statement.

The witness testified at trial that one of the accused attempted to break up the fight, which contradicted his earlier police statement and preliminary inquiry testimony.

The court granted the application, finding the Crown could not have been expected to lead this evidence in-chief.

However, the court restricted the Crown from questioning the witness about post-offence phone calls with the accused, ruling that such questions would improperly suggest consciousness of guilt and be highly prejudicial.

The Crown applied for certiorari and mandamus to quash a preliminary inquiry judge's decision discharging the accused on a charge of first degree murder and committing him only for second degree murder.

The accused was alleged to have committed a drive-by shooting.

The reviewing judge found that the preliminary inquiry judge committed a jurisdictional error by failing to consider the whole of the circumstantial evidence, which was reasonably capable of supporting an inference of planning and deliberation.

The application was granted, and the matter was remitted with a direction to commit the accused to stand trial for first degree murder.

The appellant appealed his conviction for impaired care and control of a motor vehicle and "over 80", and the imposed sentence.

The appeal challenged the trial judge's findings on reasonable grounds for arrest and breath demand, alleged violations of the right to counsel under s. 10(b) of the Charter, and the sufficiency of evidence for impairment.

The court dismissed all grounds of appeal, affirming the conviction and the 18-month driving prohibition, finding no palpable and overriding error in the trial judge's factual findings or legal reasoning.