R. Cary Boswell

The self-represented accused, facing fraud charges for allegedly holding himself out as a lawyer and misappropriating funds, brought an application for further first-party disclosure from the Crown and third-party records from his former employers, the police, and the Law Society of Upper Canada.

The court reviewed the requests under the Stinchcombe and O'Connor frameworks.

The court ordered the production of certain invoices and payments to establish the business relationship between the accused and the law firms, and ordered the Crown to provide witness lists and criminal records.

Requests for client files were denied due to solicitor-client privilege, and the request for Law Society records was dismissed as a fishing expedition.

The accused was charged with impaired driving causing death and bodily harm, dangerous driving, and failing to remain at the scene after striking two municipal workers with his truck.

The accused raised a defence of non-mental disorder automatism, arguing he was in a parasomniac state (sleep-driving) at the time of the collision.

The court rejected the automatism defence, finding the accused fell asleep at the wheel due to extreme fatigue and alcohol impairment, rather than a sleep disorder.

The accused was convicted of impaired driving causing death and bodily harm.

However, he was acquitted of dangerous driving because it was not reasonably foreseeable that he would fall asleep during the short drive, and acquitted of failing to remain because he was asleep during the collision and unaware it had occurred.

This ruling addresses the qualification of Dr. Brian Murray, a neurologist, to offer expert opinion evidence on sleep disorders, specifically parasomnia and sleep driving, in a criminal trial where the defendant, Marcello Fracassi, asserts an automatism defence.

The defence challenged Dr. Murray's qualification on grounds including his specialty (neurologist vs. forensic psychiatrist), lack of personal examination of the defendant, limited litigation experience, and perceived bias.

The court applied the Mohan/White Burgess framework, finding Dr. Murray met the threshold requirements for logical relevance, necessity, and absence of exclusionary rules.

The court rejected the argument that only forensic psychiatrists could testify on automatism in sleep disorder cases, noting Dr. Murray's extensive education and experience.

The court also found that the lack of a personal interview and prior courtroom experience went to weight, not admissibility.

While acknowledging some "peculiar" passages in Dr. Murray's report, the court found no clear evidence of bias to warrant exclusion.

Consequently, Dr. Murray was qualified as an expert in neurology and sleep disorders.

The applicant, Altus Group Limited, sought to set aside an arbitration award in favor of the respondent, 3GS Incorporated, on the grounds of fraud.

Altus alleged that a key witness for 3GS, Lisa Robbins, lied under oath about her criminal convictions during the arbitration.

The court found that Ms. Robbins did indeed give dishonest testimony regarding her criminal record.

However, the court ultimately dismissed the application, concluding that Ms. Robbins' fraudulent evidence was not material to the outcome of the arbitration, as the arbitrator's decision was primarily based on Altus's own knowledge and concealment of its breach, and the credible testimony of 3GS's principals, Alan and Ann Gordon, which was untainted by Ms. Robbins' dishonesty.

The plaintiff franchisor sought an interlocutory injunction against a former franchisee, Gregory Boundris, and related entities (D.B.V. Co. Ltd., Sub Works Inc., and Haralabbi Boundris), alleging breach of a restrictive covenant in a franchise agreement.

The former franchisee had opened a competing sandwich shop, "Sub Works," at the same location shortly after his Mr. Sub franchise agreement terminated.

The court applied the "strong prima facie case" standard for the injunction, finding it would effectively be a final determination.

The court granted the injunction against Gregory Boundris due to his admitted involvement in the competing business, but dismissed the motion against the other defendants, finding insufficient evidence to establish a strong prima facie case or irreparable harm against them.

The Superior Court of Justice delivered sentencing reasons for three defendants convicted of culpable homicide following a home invasion and robbery.

Tin Wai Hong was convicted of second-degree murder, receiving a life sentence with 13 years parole ineligibility, and a concurrent 4-year sentence for assault causing bodily harm.

Mason Gillard-Gatza and Nathaniel Cain were convicted of manslaughter, each receiving an 11-year sentence (net 4 years 3 months after pre-trial custody credit) and a concurrent 2-year sentence for assault causing bodily harm.

The court considered aggravating factors such as the violent, drug-related home invasion, gratuitous violence, and prior criminal records, alongside mitigating factors including youth, lack of prior record, family support, expressions of remorse, and, for one defendant, reduced life expectancy.

Ancillary orders included a lifetime weapons prohibition, DNA sample, and no-contact orders with victims.

Following a lengthy jury trial for murder and attempted murder arising from a home invasion, the court addressed post‑charge objections raised by the Crown and several defence counsel regarding the jury instructions.

The objections concerned the adequacy of instructions on forcible confinement, party liability, the mental state required for planned and deliberate murder, and the temporal‑causal connection required for constructive first degree murder under s. 231(5) of the Criminal Code.

The court held that the charge, when read as a whole, correctly conveyed the applicable legal principles and adequately reflected the parties’ positions.

With one limited exception, the court declined to give additional corrective instructions, finding the charge clear and legally sufficient.

The defendants, on trial for first-degree murder arising from a home invasion and robbery, raised numerous objections to the Crown's closing address to the jury.

The defence argued that the Crown misstated evidence, improperly referenced out-of-court statements, and undermined the presumption of innocence, seeking a mistrial or the right to make reply submissions.

The court reviewed the objections and found that while some of the Crown's comments required corrective instructions in the final jury charge, the conduct did not render the trial fundamentally unfair.

The applications for a mistrial and for reply submissions were dismissed.

During a lengthy jury trial for murder and attempted murder arising from a home invasion, the court ruled on several pre‑charge issues affecting the jury instructions and evidentiary materials.

The court addressed whether transcripts of recorded police statements should accompany the jury, whether certain medical records required redaction, and whether instructions on wilful blindness and alternative routes to first‑degree murder should be given.

The court allowed transcripts of most recorded statements to go to the jury but excluded the transcript of one accused’s statement due to lack of probative value.

Medical records referring to “severe hypoxia” were admitted without redaction.

The court declined to instruct the jury on wilful blindness for the driver accused, finding insufficient specificity of suspicion to impute knowledge.

During a jury trial for first degree murder arising from a home invasion robbery, the accused sought to introduce an excerpt from an audio-recorded statement he made to police while being transported after arrest.

The Crown objected, arguing the excerpt constituted an inadmissible prior consistent statement.

The court reviewed the governing principles regarding prior consistent statements, including the recognized exceptions and the principled exception articulated in appellate jurisprudence permitting admission of spontaneous exculpatory reactions when an accused is first confronted with an accusation.

Considering the circumstances of the transport conversation, including the investigative questioning designed to startle the accused and the contextual uncertainty regarding spontaneity, the court concluded the statement should be admitted.

The jury would be instructed that the statement was not admitted for the truth of its contents but could be considered as circumstantial evidence of the accused’s state of mind and reaction when confronted with evidence of involvement.

During a multi-accused jury trial for murder and attempted murder arising from a home invasion, the Crown sought to revisit a pre‑trial editing ruling that had excluded a portion of one accused’s police statement referencing a conversation with a co‑accused driver.

The Crown argued that subsequent cross‑examination created a material change in circumstances because the witness acknowledged misleading the driver about the purpose of the trip, making the excluded statement relevant as a prior inconsistent statement and to credibility.

The court held that the threshold for revisiting the ruling was met but declined to change the original decision.

Although the probative value of the statement had increased, its prejudicial effect against the co‑accused—against whom it remained inadmissible—continued to outweigh its value, particularly given the stage of the trial and fairness concerns.

The Crown’s application was therefore dismissed.

During a jury trial for murder arising from a home invasion, the accused sought to call a cardiologist to testify that a congenital heart condition could have caused hypoxia leading to confusion and impaired cognition during the incident.

The Crown opposed the evidence, arguing it lacked relevance, necessity, and proper qualification and risked misleading the jury.

Applying the Mohan framework as refined in White Burgess and Abbey, the court held the proposed expert testimony was logically relevant, necessary to explain the accused’s serious medical condition, and within the expert’s qualifications.

The court further concluded that any limitations in the opinion affected weight rather than admissibility and that the probative value of the defence-led evidence was not substantially outweighed by prejudice.

The expert evidence was therefore admitted for consideration by the jury.

During a jury trial for murder and attempted murder arising from a home invasion, the accused sought to call a cardiologist to provide expert evidence regarding congenital heart disease and its potential impact on mental functioning.

The Crown challenged the admissibility of the expert testimony, arguing issues of relevance, qualification, and reliability under the Mohan framework.

The court determined that a focused Mohan voir dire was required to clarify the precise opinion and assess the expert’s qualifications.

The judge held that the expert could testify on the voir dire only to identify the proposed opinion and establish qualifications, and that broader cross-examination was unnecessary for the admissibility determination.

During a jury trial for offences arising from a home invasion and robbery, the Crown sought to revisit a prior evidentiary ruling that had ordered references to the accused’s consultation with duty counsel removed from a police statement.

The Crown argued that subsequent testimony placing the reliability of the statement in issue increased the probative value of the fact that the accused had received legal advice before speaking to police.

The court reconsidered the issue under the residual discretion to exclude evidence where prejudicial effect outweighs probative value.

The judge held that the probative value of the consultation with counsel remained slight and that admitting the evidence would invite improper speculation about privileged communications.

The earlier ruling requiring redaction was therefore maintained.

The accused, along with three co-accused, was charged with first degree murder and attempted murder arising from a home invasion.

The accused brought a Corbett application to restrict cross-examination on his criminal record, which included five prior convictions for assault.

The Crown and a co-accused brought cross-applications to adduce evidence of the underlying facts of those assaults and other violent conduct as propensity evidence.

The court granted the accused's application, limiting cross-examination to his non-violent convictions, and dismissed the cross-applications.

The court found that the prejudicial effect of admitting the prior violent conduct substantially outweighed its probative value, particularly given the risk of propensity reasoning in a trial involving blunt force trauma.

In a jury trial for murder and attempted murder arising from a violent home invasion, the Crown challenged the sufficiency of a defence expert report disclosed under s. 657.3(3) of the Criminal Code.

The defence intended to call a cardiologist to testify about the accused’s congenital heart disease and the possible cognitive effects of exertion‑induced hypoxia, which could raise a reasonable doubt about the specific intent required for murder.

The court held that the report provided sufficient disclosure of the expert’s anticipated areas of evidence and the grounds underlying them, though it did not disclose the expert’s ultimate opinion regarding the accused’s symptoms at the time of the offences.

Considering the advanced stage and logistical constraints of the lengthy jury trial, the court declined to order further particulars or other remedial measures.

The issue of the expert’s qualifications to testify about hypoxia‑related cognitive effects was left to a focused Mohan voir dire.

During a murder and attempted murder trial arising from a home invasion, defence counsel alleged that Crown counsel improperly asked a co‑accused witness questions without a good faith basis during cross‑examination.

The defence argued that certain suggestions put to the witness regarding clothing worn during the offence and the cause of injuries to the surviving victim were speculative and inconsistent with the evidentiary record.

The court applied the Supreme Court of Canada’s guidance in R. v. Lyttle on the scope of permissible cross‑examination and the meaning of a good faith basis.

The judge concluded that the Crown’s questions were grounded in reasonable inference drawn from the available evidence.

Accordingly, the court declined to take any remedial steps.

In a jury trial for first degree murder and attempted murder arising from a home invasion, the accused brought applications for directed verdicts at the close of the Crown’s case.

They argued the circumstantial evidence was insufficient to support inferences of planning and deliberation or the requisite intent for murder and attempted murder, and that the rule in Hodge’s Case required exclusion of those theories.

The court held that the governing test on a directed verdict motion is whether there is any evidence upon which a properly instructed jury could reasonably convict, and that the rule in Hodge’s Case does not apply at this stage.

The court found there was evidence capable of supporting inferences that the killing was planned and deliberate and that the accused participated with the necessary intent.

However, the Crown was barred from advancing second degree murder liability against the driver under the common unlawful purpose doctrine due to insufficient evidence of subjective foresight of death.

During a murder trial involving a home invasion, defence counsel for one of the co-accused sought to create a summary chart of a key Crown witness's testimony on an easel pad during cross-examination.

The Crown and counsel for another co-accused objected, arguing the chart was unnecessary, cumulative, and potentially misleading.

The court allowed the use of the demonstrative aid, finding that it was a useful organizational tool, met threshold reliability, and its probative value was not substantially outweighed by any trial management or trial fairness prejudice.

During a multi‑accused murder trial, the jury sent a note expressing concerns about safety after observing three men enter the courtroom whom they believed might be connected to the accused.

Defence counsel argued the note suggested potential racial bias or juror fear that could compromise impartiality and requested a jury inquiry.

The court conducted a focused inquiry questioning each juror individually about what they observed, whether they had concerns, whether race influenced their reaction, and whether they could remain impartial.

All jurors confirmed they had no concerns and could continue to decide the case solely on the evidence and legal instructions.

The court concluded the presumption of juror impartiality had not been rebutted and refused defence requests for a further inquiry.