Ravin Pillay

The appellant was convicted of first-degree murder after a second trial following the Crown's successful appeal of his acquittal at the first trial.

The key difference between the trials was the admission of expert evidence from Mark Totten regarding the meaning of teardrop tattoos in gang culture.

At the first trial, the trial judge excluded Totten's evidence as unreliable.

The Court of Appeal allowed the Crown's appeal and ordered a new trial, holding that Totten was qualified to give expert evidence.

At the second trial, Totten testified that a teardrop tattoo could signify one of three things: the loss of a loved one, time in prison, or the killing of a rival gang member.

He provided statistics claiming that of 290 gang members in his studies, 97 had been convicted of homicide, 71 had teardrop tattoos, and all 71 obtained the tattoo to signify killing a rival gang member.

The appellant was convicted.

On appeal, the appellant sought to introduce fresh evidence impeaching Totten's credibility and the reliability of his statistical evidence, including evidence from Totten's cross-examination in an unrelated murder trial and Totten's own research studies.

The fresh evidence demonstrated serious deficiencies in Totten's research methodology, misrepresentations regarding sample size, and unsupported statistical claims.

The Court of Appeal admitted the fresh evidence, found it sufficiently cogent to have disqualified Totten from testifying, and concluded that the absence of his evidence would reasonably have affected the verdict.

The Court allowed the appeal and ordered a new trial.

The applicants, jointly charged with first degree murder, brought pre-trial motions for severance and for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The court dismissed the severance motion, finding that the interests of justice favoured a joint trial and that any prejudice from out-of-court statements could be managed with limiting instructions.

The court also dismissed the s. 11(b) motion, calculating the net delay at 29 months after deducting 15 months for the discrete event of a concurrent murder trial involving the same accused.

Alternatively, the court found the delay justified by the case's exceptional complexity and transitional provisions.

The applicant sought review of a detention order denying judicial interim release pending extradition proceedings to the United States for unauthorized use of a computer.

The applicant argued the application judge erred in principle and that material changes in circumstances warranted variation of the order.

The Court of Appeal found no reviewable errors in the application judge's analysis of flight risk, public protection, and public confidence grounds.

The court rejected the argument that fresh evidence regarding the charges constituted a material change in circumstances.

The application was dismissed, with the court emphasizing the serious nature of cybercrime and the applicant's significant flight risk.

The appellant was convicted of sexual offences against his step-daughter.

He appealed his convictions, arguing the trial judge erred by allowing the Crown to re-examine the complainant on his prior discreditable conduct, admitting a police officer's lay opinion evidence regarding the mother's demeanour upon learning of the allegations, and giving an unbalanced corrective instruction regarding defence counsel's closing submissions.

The Court of Appeal dismissed the appeal, finding the trial judge properly varied his ruling on discreditable conduct after defence cross-examination created a distorted view of the appellant's character.

The Court also held that the demeanour evidence was admissible lay opinion, and any error in admitting the officer's opinion that the reaction was 'odd' was cured by the trial judge's jury instructions.

The accused was charged with multiple serious offences including fraud over $5,000 in association with a criminal organization, conspiracy to traffic firearms and cocaine, and breach of recognizance.

The Crown sought detention on primary, secondary, and tertiary grounds.

The court found that while the accused met his onus on the primary ground due to strong supervision conditions including electronic monitoring and house arrest, he failed to meet his onus on the secondary and tertiary grounds.

The court found credible evidence of multiple breaches of prior bail conditions, membership in a criminal organization, and a substantial likelihood of committing further offences that would imperil public safety.

The court also found that detention was necessary to maintain confidence in the administration of justice given the serious nature of the charges and the overwhelming wiretap evidence.

The accused was detained.

This decision contains pre-charge conference rulings in a first-degree murder trial involving two accused.

The court addressed two main issues: the Crown's request to include constructive first-degree murder under s. 231(5)(e) of the Criminal Code as a route of liability, and Mr. Smich's request for a Vetrovec warning regarding certain Crown witnesses.

The court denied the Crown's request for constructive murder, finding no air of reality to unlawful confinement distinct from the killing.

It also denied Mr. Smich's request for a Vetrovec warning for the specified witnesses, concluding that the jury would be capable of assessing their credibility with general instructions.

However, the court granted Mr. Millard's counsel's request for a caution regarding Mr. Smich's testimony where it implicates Mr. Millard.

The applicants, Dellen Millard and Mark Smich, sought an order prohibiting or delaying the publication of all evidence, submissions, and rulings made during their ongoing first-degree murder trial (Bosma case) and in the absence of the jury, until the completion of their separate trial for the murder of Laura Babcock.

The Crown and a Media Coalition opposed the broad scope of the requested ban, arguing that open court principles should apply and that jury safeguards provide adequate protection.

The court applied the Dagenais/Mentuck test, requiring a convincing evidentiary basis for a serious risk of prejudice that cannot be addressed by alternative measures.

The court granted the publication ban in part, extending it to specific mid-trial voir dire rulings and objections deemed to have a direct impact on the Babcock case and the applicants' fair trial rights, particularly concerning the "Eliminator" device and the transmission of letters from jail, as well as matters potentially affecting Ms. Noudga's fair trial rights.

The Crown applied mid-trial to admit text messages between the two accused, previously ruled inadmissible, arguing that defence cross-examination had "opened the door" by asserting lack of planning, good character, or lack of knowledge of the "Eliminator." The accused opposed, citing prejudice and lack of material change in circumstances.

The court denied the Crown's application, finding no material change in circumstances to warrant reconsideration of the prior ruling, and that the probative value did not outweigh the significant prejudice, especially given the potential for references to another alleged murder.

Limited exceptions were made for cross-examination if the accused testified on specific points.

The Crown sought a mid-trial order for the jury to conduct a view of multiple crime scenes and an incinerator device in a murder trial.

The accused opposed, arguing prejudice due to late timing, potential for misleading the jury regarding the theoretical route, and inflammatory impact of the incinerator.

The court dismissed the application, finding the Crown failed to demonstrate a "very real and demonstrable advantage" that could not be achieved through existing evidence, and that the late stage of the trial exacerbated the risk of prejudice and overemphasis.

Mark Smich, a co-accused in a joint trial, brought an application to introduce evidence of Dellen Millard's general propensity or bad character, arguing that Millard's counsel had put Millard's character in issue during cross-examination of a witness.

Millard and the Crown opposed the application.

The court found that the cross-examination, which elicited evidence about Smich's violent temperament, anger issues, and control over others, including rap lyrics, was within the scope of a Pollock and Morrisson application.

This evidence was deemed probative to specific issues, such as Smich's ability to intimidate and weapon ownership, relevant to Millard's antagonistic defence.

The court concluded that Millard's general character had not been put in issue by these questions and that there was no imbalance requiring rebuttal.

The application was dismissed.

The applicant, Mark Smich, sought a mistrial during a joint murder trial, alleging that co-accused Dellen Millard's counsel improperly introduced highly prejudicial propensity and bad character evidence, including violent rap lyrics, beyond the scope of a Pollock and Morrisson application.

The Crown and co-accused Millard opposed the application, arguing the evidence was within the scope of cross-examination for antagonistic defenses and that timely limiting instructions had been provided.

The court dismissed the application, finding that while one specific rap lyric reference exceeded the permitted scope, it was probative to a live issue (firearm ownership) and that any potential prejudice could be cured by jury instructions, not warranting the "last resort" remedy of a mistrial.

During a joint trial, counsel for one of the co-accused sought directions on the appropriate timing to introduce propensity or bad character evidence against the other co-accused through cross-examination of a Crown witness (a 'Pollock & Morrisson' application).

The court ruled that to maintain full answer and defence and procedural fairness, notice of such an application must be provided at the conclusion of the Crown's examination-in-chief, prior to the commencement of cross-examination by the co-accused's counsel.

During a criminal jury trial, the accused objected to the Crown's expert witnesses using PowerPoint presentations that included conclusions and opinions, arguing they would unfairly emphasize the Crown's case and act as written reports.

The trial judge ruled that the PowerPoint presentations were admissible as exhibits to assist the jury in understanding complex technical evidence, provided that certain bald conclusions or opinions were redacted.

The judge found that such demonstrative aids are reasonably necessary in modern trials to enhance juror comprehension, subject to proper limiting instructions.

During a murder trial, the accused applied for a mistrial after a Crown witness provided undisclosed opinion evidence suggesting an incinerator had been used more than once.

The accused argued this prejudiced them by implying involvement in other uncharged murders.

The trial judge dismissed the application, finding that a mistrial is a remedy of last resort and that a sharp instruction to the jury to disregard the unfounded opinion evidence was sufficient to cure any potential prejudice.

During a murder trial, the Crown brought a motion arguing that one of the co-accused had placed his good character in issue through the cross-examination of a Crown witness.

The co-accused's counsel had elicited testimony from the witness that the co-accused seemed like a 'nice fellow' who could not be imagined to be involved in the victim's disappearance.

The court dismissed the motion, finding that the cross-examination was intended to repudiate the Crown's theory of the case and attack the reliability of the witness's testimony, rather than to introduce evidence of general reputation or good character.

The applicants, facing three separate first-degree murder trials, sought an unprecedented publication ban on all evidence to be adduced at their first trial (the Bosma murder) until the completion of their subsequent trials, arguing that pre-trial publicity would prejudice future juries.

Alternatively, they sought to extend the statutory publication ban on pre-trial motions.

The court dismissed the request for a blanket ban on trial evidence, finding that the applicants failed to demonstrate a serious risk to trial fairness and that jury safeguards would be sufficient.

However, the court granted the alternative request, extending the publication ban on pre-trial motions until the conclusion of the subsequent Babcock trial due to the high risk of prejudice from overlapping inadmissible evidence.

The accused brought an application under s. 591(3) of the Criminal Code seeking severance from a co-accused in a joint first-degree murder prosecution.

The moving party argued that the co‑accused intended to advance a cut‑throat defence, introduce bad character and propensity evidence, rely on out‑of‑court statements implicating the moving party, and conduct aggressive cross‑examination, all of which would create overwhelming prejudice.

The Crown and co‑accused opposed the motion, arguing that limiting instructions could address any prejudice and that joint trials are strongly preferred where accused are alleged to have acted in concert.

The court held that the applicant had not demonstrated that a joint trial would cause injustice or undermine the right to a fair trial.

Potential prejudice could be mitigated through evidentiary rulings and careful jury instructions, and policy considerations strongly favoured a joint trial.

The accused applied to quash search warrants issued on May 11 and May 12, 2013 and to exclude evidence under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

The court reviewed whether the Information to Obtain provided reasonable grounds and whether police conduct during searches of multiple properties was constitutional.

The court found that a warrantless search of the accused’s aircraft hangar violated s. 8 and that evidence seized from the hangar should be excluded.

However, the court upheld the validity of the search of the accused’s residence and admitted evidence relating to an incineration device and associated forensic evidence discovered on rural property.

Applying the Grant framework, the court concluded that admission of the latter evidence would not bring the administration of justice into disrepute.

The Crown brought an application to introduce evidence of prior discreditable conduct against the co-accused in a first-degree murder trial.

The Crown sought to admit evidence of the co-accused's prior criminal collaboration, access to firearms, and use of an animal incinerator to establish their relationship, motive, and the actus reus of the offence.

The court applied the test for admitting discreditable conduct, balancing probative value against moral and reasoning prejudice.

The court granted the application in part, finding that certain evidence was highly probative to understanding the co-accused's relationship and rebutting anticipated defences, while excluding other evidence that posed an insurmountable risk of propensity reasoning.

The accused brought an application to exclude evidence obtained through a telewarrant authorizing the search of his vehicle, arguing the police improperly relied on the telewarrant procedure contrary to s. 487.1 of the Criminal Code and thereby violated s. 8 of the Charter.

The accused submitted the Information to Obtain did not adequately establish impracticability for personal attendance before a justice and that the delay between seizure, issuance, and execution of the warrant undermined the justification for a telewarrant.

The court held that the impracticability threshold under s. 487.1 is relatively low and that the circumstances of a complex and urgent missing person investigation with limited resources justified use of the telewarrant procedure.

The court concluded that the issuing justice had sufficient grounds to issue the telewarrant and that no Charter breach occurred.

In any event, the court held the evidence would be admissible under s. 24(2) of the Charter.