P. Zaduk

During a trial for kidnapping and robbery, the Crown led cell tower evidence to establish the identity of the accused.

In closing addresses, defense counsel suggested there was a 40 percent error rate regarding the general rule that cell phones connect to the closest tower.

The Crown objected.

The trial judge ruled that because the witnesses did not adopt the proposition of a 40 percent error rate during cross-examination, there was no evidence to support the suggestion.

A corrective instruction was provided to the jury in the final charge.

Following a jury trial, two offenders were convicted of manslaughter arising from a group swarming attack outside a restaurant that resulted in the victim’s death.

The sentencing judge assessed aggravating factors including the vulnerability of the unarmed victim, the coordinated nature of the attack, the use of golf clubs and a golf club shaft as weapons, and the offenders’ flight from the scene.

Mitigating considerations included the offenders’ youth, limited or absent criminal records, expressions of remorse, and prospects of rehabilitation.

The court rejected submissions that harsh pre‑sentence custody conditions warranted additional mitigation beyond statutory credit.

Applying sentencing principles of proportionality, denunciation, deterrence, and parity, the court imposed identical penitentiary sentences.

During a jury trial for homicide arising from a restaurant assault, the court considered whether the defence of abandonment should be left with the jury for two accused alleged to be parties to the offence under s. 21 of the Criminal Code.

Applying the Supreme Court’s formulation of the abandonment defence in R v. Gauthier and the “air of reality” test, the court examined whether the evidence could reasonably support findings that the accused intended to withdraw, communicated that withdrawal in a timely and unequivocal manner, and took proportional steps to neutralize their participation.

Evidence from one accused that he attempted to discourage the assault and physically intervened was capable of supporting the defence.

By contrast, the other accused’s single statement discouraging a fight and subsequent inaction did not satisfy the elements of abandonment.

The defence was therefore left with the jury for one accused but not the other.

During a jury trial for homicide, the Crown sought to cross‑examine an accused about a security video depicting two vehicles near the crime scene and to argue in closing that the vehicles belonged to the accused and a Crown witness.

Defence counsel objected, arguing there was no good‑faith basis for the proposed questioning and that the Crown had earlier indicated the video would not be relied upon.

The court found that defence counsel had reasonably relied on the Crown’s stated position and that the Crown’s belief linking the vehicles to the accused was not reasonably supported by evidence.

Allowing the questioning or submissions would create unfair prejudice and invite speculation by the jury.

The court therefore prohibited the Crown from cross‑examining the accused on the video or making submissions linking the vehicles to the accused or the witness.

During a jury trial for homicide-related offences, the accused sought a ruling preventing the Crown from arguing that marks on the deceased’s clothing were footwear impressions attributable to the accused.

The forensic investigator described several impressions on the clothing but did not identify them as footwear impressions and could not match them to the footwear of either accused.

The court held that the Crown’s proposed inference lacked the necessary foundational evidence and would amount to impermissible speculation.

Applying principles governing circumstantial evidence and inference‑drawing, the court concluded that the primary fact that the impressions were caused by footwear had not been established.

Crown counsel was therefore prohibited from inviting the jury to conclude that the impressions were footwear impressions or attributable to the accused.

The defence applied to exclude evidence of the accused's post-offence conduct, specifically his flight from police nine months after the alleged homicide.

The defence argued the evidence was more prejudicial than probative.

The court dismissed the application, finding the evidence relevant and probative to the issue of whether the accused committed a culpable homicide and did not act in self-defence.

The court held that the jury should be allowed to weigh the evidence with appropriate instructions.

The accused brought a Corbett application seeking to edit his criminal record before testifying before the jury.

He requested that a prior robbery conviction be referred to as a theft and that a conviction for flight from police be excluded.

The court granted the application, finding that admitting the robbery conviction carried a serious risk of impermissible propensity reasoning given the factual matrix of the current charges.

The court also excluded the flight from police conviction, noting it was not a crime of dishonesty and its prejudicial effect outweighed any probative value, particularly since the Crown intended to lead after-the-fact conduct evidence of the accused fleeing police upon arrest.