R. Cary Boswell

This ruling addresses six substantive pre-charge issues in a manslaughter jury trial.

The court decided to leave the defence of consent to fight with the jury for the accused Zenczuk, but excluded evidence of his post-offence laughter as it lacked probative value and carried high prejudice.

For accused Clare, the court declined to instruct the jury on aiding or on s. 21(2) liability due to insufficient evidence of a common intention to commit a group assault.

The court also clarified the instruction regarding the inference of encouraging words uttered by Clare and limited the admissibility of the victim's criminal record to only the most recent assault conviction, deeming older convictions too remote to be probative of current disposition.

This ruling addresses the appropriate jury instruction when directed verdicts of acquittal and stays of proceedings are granted against some, but not all, defendants in a joint criminal trial.

The court considered arguments from defence counsel, who sought to withhold reasons for the defendants' departure, and the Crown, who advocated for instructions consistent with R. v. Rowbotham.

The judge decided to instruct the jury on the directed verdicts and stays, have the Crown enter stays in the jury's presence, and provide a cautionary instruction to prevent speculation and ensure individual assessment of guilt for the remaining defendants.

This decision provides supplemental reasons for directed verdict applications in a criminal trial involving charges of manslaughter, assault with a weapon, and assault causing bodily harm.

The Crown sought to rely on s. 21(2) of the Criminal Code to establish liability for manslaughter against all defendants, clarifying a previous misunderstanding of their position.

The court, however, found that even with the application of s. 21(2), there was insufficient evidence to establish a common intention among the defendants to commit a group assault on the pedestrians, which is a prerequisite for extended liability under s. 21(2).

Consequently, the earlier directed verdicts of acquittal for manslaughter against two defendants and assault causing bodily harm against two others remained undisturbed.

The court ruled on directed verdict applications for four defendants charged with manslaughter, assault with a weapon, and assault causing bodily harm following a fatal altercation.

The judge dismissed the assault with a weapon charge for all defendants due to insufficient evidence.

Manslaughter charges were dismissed for two defendants (Ampadu and Paniccia) but proceeded for two others (Clare and Zenczuk).

Assault causing bodily harm charges proceeded for two defendants (Ampadu and Paniccia) but were dismissed for the other two (Clare and Zenczuk).

The court found insufficient evidence for a common intention to attack all pedestrians, requiring individual assessment of party liability.

The defendant, on trial for manslaughter and assault charges, had his bail revoked when his father withdrew as surety.

A bail hearing was held to determine new release conditions.

The court found the Crown established a safety risk and likelihood of re-offence, necessitating a surety release.

The defendant proposed his mother as surety.

The court ultimately released the defendant on a $25,000 recognizance with his mother as surety, imposing house arrest and other conditions, but removing the electronic monitoring ankle bracelet.

The electronic monitoring condition was deemed constitutionally non-compliant due to its imposition without an opportunity to be heard, its unaffordable cost, and the significant emotional toll it placed on the family.

The defendant, facing serious charges including manslaughter, had his bail revoked after his father withdrew as surety.

The court conducted a fresh bail hearing, determining that the original recognizance was vacated and a new de novo hearing was required, with the Crown bearing the onus.

Given the defendant's history of breaching bail conditions and committing further serious offenses, the court found that an unconditional undertaking or less stringent conditions were insufficient.

A surety release was deemed necessary to address public safety concerns and the substantial likelihood of re-offence.

The matter was adjourned to determine adequate sureties and further conditions.

The defendant, Dean Richer-Lebreton, was convicted of aggravated assault and sentenced to six years imprisonment, less 654 days pre-sentence custody (rounded to 22 months), resulting in a net sentence of 4 years and 2 months.

The court considered the circumstances of the offence, the offender's extensive criminal record, and the severe impact on the victim.

The court declined to grant enhanced credit for pre-sentence custody, finding the offender to be a dangerous, incorrigible recidivist unlikely to be granted early release.

Ancillary orders included a lifetime weapons prohibition, DNA sample, and no contact with the victim during the custodial portion of the sentence.

The defendants, jointly charged with manslaughter and assault, brought a motion seeking further disclosure from the Crown.

The applications concerned two areas: notes taken by police officers during witness preparation meetings with the Crown, and materials the Crown intended to use to cross-examine a proposed defence expert witness (a toxicologist) on the issue of bias.

The Crown opposed both applications, arguing that the notes contained no new relevant information and were subject to litigation privilege, and that the expert's prior testimony transcript was a matter of public record and not part of the "fruits of the investigation." The court ruled that the Crown was obliged to disclose both the officers' notes, finding them relevant and not privileged, and the transcript of the expert's prior evidence, as it related to the expert's impartiality and the accused's constitutional right to make full answer and defence.

The court emphasized the Crown's role as a minister of justice, prioritizing the proper administration of justice over tactical litigation advantages.

The request for "will-say" statements from officers who did not take notes was denied, as it would amount to creating evidence rather than disclosing existing material.

The Crown sought to exclude cell phone copies of surveillance video in a manslaughter trial, arguing they were unreliable due to unexplained differences from the original and violated the best evidence rule.

The defence contended the cell phone copies offered superior clarity and had been used without objection in a prior mistrial.

The court dismissed the Crown's application, finding the cell phone copies met the threshold for reliability, provided the clearest images, and thus satisfied a common sense application of the best evidence rule, emphasizing that "original" does not always mean "better" in terms of evidence quality.

The Crown brought an application to relitigate two prior evidentiary rulings made during an initial trial that ended in a mistrial.

The rulings concerned the admissibility of a witness's statement and the scope of cross-examination regarding an alleged attempt to influence testimony.

Applying s. 653.1 of the Criminal Code and the "interests of justice" factors from R. v. Victoria, the court found that the prior rulings were not clearly wrong and that no new evidence or arguments were presented to justify relitigation.

The application was dismissed, affirming the binding nature of the previous evidentiary decisions for the re-trial.

The defendants, Alex G. Krek and Francka Krek, brought a motion to dismiss the plaintiffs', William and Dianne Klein, action for delay, pursuant to Rule 24.01(1)(c) of the Rules of Civil Procedure.

The action, stemming from an oil spill 29 years prior, was commenced in 2011 and had seen significant delays and missed timetables.

The Kreks argued the delay was inordinate, inexcusable, and caused prejudice, citing the death of a witness and Mr. Krek's frail health.

The Kleins contended their delay was reasonable, particularly given a prior ruling by Wood J. in October 2017 that found their delay reasonable until recently, and subsequent consent timetables.

The court, while expressing "grave concerns" about the slow progress and finding the overall delay inordinate, ultimately denied the motion to dismiss.

This was based on the principle from Stokker v. Storoschuk that where delay has been addressed in a prior court order, only subsequent delay requires explanation.

The court found the delay since Wood J.'s order (17 months) was not inordinate or unexcused, but imposed a peremptory "last chance" timetable for the Kleins to advance the action.

Thomas Chan was convicted of manslaughter and aggravated assault after fatally stabbing his father and gravely injuring his father's partner during a drug-induced psychotic episode from magic mushrooms.

The court considered the principles of sentencing, including proportionality, denunciation, and deterrence, balancing the high gravity of the offences with the offender's diminished moral blameworthiness due to unforeseeable psychosis and his exemplary character.

The judge imposed a global sentence of five years imprisonment, reduced by 1.5 years for pre-trial custody (including enhanced credit for solitary confinement and restrictive bail conditions), resulting in a net sentence of 3.5 years.

During a first-degree murder trial, the court ruled on three pre-charge issues.

First, the court held that post-offence conduct evidence regarding a Facebook profile change and a payment in cocaine could not be used to infer intent, as the conduct was equally consistent with innocent explanations.

Second, the court denied the Crown's request to urge an adverse inference against the accused for failing to call a witness to corroborate his intoxication defence, noting it would improperly shift the burden of proof.

Finally, the court removed jury instructions on alternate modes of participation after the accused conceded he caused the victim's death as a principal.

During a murder trial, the defence sought to qualify a clinical pharmacist as an expert to provide opinion evidence on the effects of cocaine, marijuana, and alcohol on the accused's brain and executive functions.

The Crown opposed the qualification, arguing the proposed evidence strayed into psychiatry and neurology.

Following a Mohan voir dire, the court qualified the witness as an expert in pharmacology to testify on the general effects of the drugs, but strictly limited his evidence, prohibiting opinions on consciousness, automatism, or conclusive statements about the accused's specific cognitive decoupling.

During a murder trial, the accused elected to testify.

In cross-examination, the Crown sought to play the entirety of the accused's 43-minute police statement for impeachment purposes.

The defence objected, arguing this would allow the Crown to impermissibly split its case.

The court dismissed the objection, finding that playing the statement in its entirety would not offend the rule against case-splitting, as the accused knew the case to meet, the statement contained numerous contradictions relevant to his state of mind, and playing it was the most efficient way to put the inconsistencies to him.

The defendant, convicted of manslaughter and aggravated assault after a drug-induced psychotic episode, applied post-conviction but pre-sentencing to re-open his constitutional challenge to s. 33.1 of the Criminal Code.

He argued that a recent decision by a coordinate judge (R. v. McCaw), which held that a prior declaration of unconstitutionality was binding, constituted exceptional circumstances.

The court dismissed the application, holding that the Lessard test requires exceptional circumstances to re-open a case.

The court disagreed with the reasoning in McCaw, affirming that the horizontal convention of precedent applies to constitutional declarations and that the court was not bound by the prior decision striking down s. 33.1.

The Crown sought to introduce eleven autopsy photographs in a homicide trial where the accused allegedly struck the deceased with a hammer.

The defence contested the admissibility of two photographs that showed the deceased's face alongside the injuries.

The court applied the balancing test for probative value versus prejudicial effect.

Finding that the contested photographs were redundant because other uncontested photographs adequately showed the same injuries without displaying the deceased's face, the court excluded the two photographs to avoid unnecessary emotional impact on the jury.

During a first-degree murder trial, the defence sought to cross-examine a Crown witness on out-of-court exculpatory statements made by the accused.

The defence argued the statements were not tendered for the truth of their contents, but to test the witness's credibility and reliability.

The Crown objected to the use of these statements.

The court ruled that generally, out-of-court exculpatory utterances of an accused cannot be introduced through a non-accused witness to challenge credibility, as this offends the rules against hearsay and prior consistent statements.

The court permitted the defence to cross-examine the witness on one specific pre-offence statement to test her recollection, but prohibited questioning on another statement that appeared to be based on hearsay from other individuals.

The Crown sought a pre-emptive ruling to limit defence counsel's cross-examination of two key Crown witnesses (DC and ZH) on their prior manslaughter convictions related to the same killing for which the accused, Jordan Osborne, was charged with first-degree murder.

Defence counsel intended to use these convictions to undermine credibility by demonstrating character defects and a motive to distance themselves from the murder by implicating Osborne.

The court found that prior convictions are legislatively deemed relevant to credibility under s. 12 of the Canada Evidence Act.

Distinguishing the case from precedents concerning prior acquittals or convictions used to bind a jury on culpability, the court held that the manslaughter convictions were relevant to the witnesses' credibility and potential vested interest in the outcome.

The court further determined that the probative value of this defence-led evidence was not substantially outweighed by the potential for reasoning prejudice, which could be mitigated by a limiting instruction to the jury.

The Crown's application to limit cross-examination was dismissed, allowing defence counsel to question the witnesses about their manslaughter convictions.

Jordan Osborne was charged with first-degree murder.

The Crown sought to admit his video-recorded confession into evidence.

Defence counsel argued the confession was involuntary due to police misrepresentations, implicit threats or promises regarding a reduced charge, and oppressive conditions (a thin jumpsuit).

The court, applying the common law confessions rule from *R. v. Oickle*, found that the police conduct, including statements about the seriousness of the charge and the potential for a lesser charge based on intent, did not constitute an explicit or implicit threat or promise strong enough to overbear the accused's will.

The court also found the jumpsuit did not create oppressive conditions.

The confession was deemed voluntary and admissible.