R. Cary Boswell

In a jury murder trial arising from a planned robbery, the court ruled on the admissibility of text messages extracted from two accused persons' cell phones.

Applying the principles governing relevance, bad character evidence, and the balance between probative value and prejudicial effect, the court excluded one partial text exchange as too context-deficient and speculative to support the inference urged by the Crown.

Two other exchanges, accepted for the purpose of the ruling as drug-related communications, were admitted because their prejudice was minimal in the trial context and they provided relevant contextual evidence about the relationship between two accused.

The court directed that limiting instructions would address any propensity risk.

In a joint trial for first-degree murder arising from a home invasion, the co-accused applied to redact portions of two videotaped police statements made by two of the accused.

The applicants argued that the statements contained inadmissible hearsay that was highly prejudicial to the non-makers.

The court applied the principles for editing co-accused statements, balancing the probative value of the narrative context against the prejudicial effect.

The court ordered the redaction of gratuitous police comments, irrelevant bad character evidence, and highly prejudicial post-offence conduct (wiping a coffee cup), but retained the core narrative descriptions of the events, holding that limiting instructions would adequately protect the co-accused.

On a motion to strike arising from a solicitor's negligence action, the court struck a shareholder's personal claim on the basis that any alleged loss was corporate loss and therefore barred by the rule in Foss v. Harbottle.

The corporate plaintiff's claim against successor counsel was dismissed as frivolous, vexatious, and an abuse of process.

The court held the claim was statute-barred, the evidentiary record showed no instructions had been given to issue the third party claim, and prior factual findings in related litigation fatally undermined causation and damages.

In substance, the proceeding sought to relitigate issues already determined in earlier summary judgment proceedings.

Two former hotel managers brought unopposed summary judgment motions seeking unpaid wages, overtime, vacation pay, statutory holiday pay, termination pay, expenses, and punitive damages after constructive dismissal arising from prolonged non-payment.

The court held there was no genuine issue requiring a trial and found both corporate employers liable, treating the businesses as operated interchangeably by their sole directing mind.

Applying the oppression remedy under s. 248 of the Business Corporations Act, the court also imposed personal liability on the estate of the sole director and officer because the plaintiffs were proper complainants whose reasonable expectations of payment were oppressively disregarded.

Punitive damages were denied, but compensatory damages and partial indemnity costs were awarded.

Two defendants moved for leave to amend their statements of defence to add limitations defences in an action alleging uncredited credit card transaction proceeds.

The plaintiff argued that leave under Rule 48.04 was required after the matter was set down for trial and that the limitations defences were themselves barred by the Limitations Act, 2002.

The court held that, even if Rule 48.04 leave were necessary, it should be granted, and rejected the argument that a limitations defence constitutes a statutory claim subject to the same limitation period.

Applying Rule 26.01, the court found no non-compensable prejudice and granted leave to amend.

Costs were awarded to the successful moving defendants on a reduced partial indemnity basis.

During a murder trial involving multiple accused, the Crown brought a motion asking the court to reconsider a prior evidentiary ruling admitting a hearsay statement from a former girlfriend of an alleged alternate suspect.

The Crown argued new evidence from two witnesses and digital communications demonstrated a strong motive for the declarant to fabricate the statement.

The court held that the new evidence constituted a material change in circumstances permitting reconsideration of the earlier ruling.

However, applying the relaxed threshold reliability standard applicable to defence evidence, the judge concluded the statement retained some reliability and should remain admissible.

The Crown was permitted to call reply evidence from the new witnesses to challenge the credibility and reliability of the hearsay statement.

During a murder trial involving a home invasion, the accused advanced a third party suspect defence and sought to question the alleged third party about prior criminal charges that had not resulted in convictions.

The court considered whether such evidence was admissible as disposition evidence and whether it could be used to impeach the credibility of the defence’s own witness.

The court held that questioning a witness about prior charges without convictions was improper because it undermines the presumption of innocence and has little probative value.

However, the court found that the underlying facts of certain prior incidents involving firearms and violent activity could be admissible where relevant to the issue of identity and the third party suspect defence.

The court therefore permitted questioning about the underlying facts of most incidents, except a 1996 event involving a knife and pepper spray which lacked sufficient probative value.

In a multi‑accused murder trial, the Crown sought to introduce a PowerPoint presentation prepared by an Ontario Provincial Police analyst summarizing extensive cell phone records already entered in evidence.

Defence counsel objected, arguing the presentation was redundant, prejudicial, and effectively allowed the Crown to present its theory of the case twice.

The court held that the PowerPoint itself was not evidence but an illustrative aid reorganizing evidence already admitted.

Although useful and reliable, its probative value was outweighed by prejudice arising from duplication, significant trial time, and the unfair advantage of allowing the Crown to present its theory through a witness before closing submissions.

The court excluded the presentation from evidence but permitted the Crown to use it in closing argument and ordered the Crown to disclose the presentation to defence counsel in editable PowerPoint format.

During a joint first‑degree murder trial, concerns arose that the spouse of a juror had attended court proceedings and communicated limited information about the case to the juror via text messages and made comments in the courthouse hallway supportive of a police witness.

Following two judicial inquiries, the accused sought either a mistrial or the discharge of the juror on the basis of juror contamination and reasonable apprehension of bias.

The court held that although the spouse’s conduct demonstrated poor judgment, there was no evidence that the juror discussed the case with the spouse or was influenced by her views.

Applying the presumption of juror impartiality and the reasonable apprehension of bias test, the court found no basis to conclude the juror could not remain independent and impartial.

The mistrial application and request to discharge the juror were denied, though the spouse was excluded from further attendance at the trial.

During a criminal jury trial, information emerged that the spouse of a juror had attended the proceedings and made comments supportive of a police witness, including remarks to the investigating officer.

The court had previously conducted an inquiry after learning the juror had received text messages from the spouse about events occurring in the courtroom.

Following new evidence from a detective about additional comments by the spouse, the court considered whether further inquiry of the jury was necessary.

Applying appellate guidance on allegations of improper juror contact, the court held that the potential taint of prejudice required a supplementary inquiry.

The judge directed that limited additional questions be put to the implicated juror to determine whether the spouse’s opinions had been communicated and whether they affected impartiality.

During a joint trial for first-degree murder and attempted murder, the jury reported that a juror's spouse had been attending the proceedings and texting the juror information about the case, which was then shared with other jurors.

Two of the accused brought an application for a mistrial.

The court conducted an inquiry, questioning each juror individually, and determined that the information imparted was innocuous, primarily concerning scheduling delays and a witness's appearance.

The court dismissed the mistrial application, finding that the improper contact did not cause actual prejudice or irreparably taint the appearance of justice and fairness.

During a multi‑accused jury trial for murder and attempted murder arising from a staged home invasion, one accused sought to introduce propensity evidence regarding a co‑accused’s violent criminal history to support an alternate‑suspect defence and raise reasonable doubt about his own participation.

The court held that an accused may adduce propensity evidence against a co‑accused where it is relevant to a live issue and its probative value is not substantially outweighed by prejudice.

While much of the proposed material was excluded, limited evidence—including certain gun‑related convictions, a nickname referencing a sniper, and specific tattoos—was admitted because it had probative value on the issue of identity.

The court concluded that the remaining prejudice could be mitigated through limiting jury instructions.

A severance motion brought by the co‑accused was dismissed and the joint trial was ordered to continue.

During a joint murder trial involving five accused, one accused (Mylvaganam) sought to introduce an alternate suspect defence, which included propensity evidence against a co-accused (Carty).

The trial judge prematurely ruled on the admissibility of this propensity evidence without a full evidentiary record or complete submissions.

Carty brought an application for severance, arguing the premature ruling gave rise to a reasonable apprehension of bias.

The court dismissed the application, finding that while the ruling was premature, a fully informed reasonable person would not apprehend bias, as the error could be remedied by conducting a proper and fulsome voir dire on the propensity evidence.

During a multi‑accused murder trial, one accused sought leave to introduce alternate suspect evidence implicating an uncharged third party.

The proposed evidence consisted primarily of hearsay statements allegedly made by that third party to former partners confessing involvement in the offence.

The court considered the admissibility of the statements under the principled exception to the hearsay rule, focusing on necessity and threshold reliability.

The judge concluded that the utterances possessed sufficient reliability and could be admitted, provided the declarant was first called and denied making them in accordance with the K.G.B. procedure.

The court further held that related propensity evidence affecting a co‑accused could be admitted with appropriate limiting instructions.

In a multi‑accused murder trial arising from a home invasion in which one victim was killed and another survived, a co‑accused sought to exclude a text message sent on the day of the offence stating “To after work ok will be game time.” The moving party argued the text was an ambiguous fragment whose meaning could only be determined through speculation and should therefore be excluded under the probative value versus prejudicial effect analysis.

The court distinguished authorities dealing with incomplete overheard utterances, finding the text was a stand‑alone statement capable of interpretation when viewed alongside earlier communications among the accused.

When considered in context with prior text exchanges suggesting planning activity, the message was capable of supporting an inference relevant to the identity and involvement of the accused.

The court held the text possessed probative value that outweighed any prejudicial effect and declined to exclude it.

The accused had pleaded guilty to luring a child, sexual interference, and making child pornography.

The Crown intended to pursue a dangerous offender application, and a lengthy hearing had been scheduled.

Due to the presiding judge becoming unavailable because of commitments to a lengthy homicide trial, the issue arose whether the sentencing and dangerous offender proceedings should be adjourned or continued before another judge.

Interpreting s. 669.2(1) of the Criminal Code broadly, the court held that another judge may continue proceedings where the original judge is unable to proceed within a reasonable time.

Given the substantial delay that would otherwise result and the interests of justice for both the accused and the complainant, the matter was directed to proceed before another assigned judge.

During jury selection for a complex, six-month murder trial, the applicant sought to discharge the sworn jurors and increase juror compensation, arguing that the high rate of excusals for financial hardship violated her Charter right to a representative jury panel.

The court acknowledged the inadequacy of current juror compensation but found that the remaining panel, after hardship excusals, was still sufficiently representative of the community.

The court held that the characteristic of being paid by an employer for jury service is not material to juror competence or impartiality, and dismissed the application.

The plaintiffs sued a residential developer alleging breach of contract regarding the height of a finished basement ceiling in a newly constructed home.

They relied on a structural upgrades price sheet referencing a standard basement ceiling height of approximately 7’10”.

The court found the parties’ agreement of purchase and sale contained no contractual term specifying a basement ceiling height and included an entire agreement clause excluding collateral representations.

The plaintiffs also failed to raise the alleged deficiency during the pre‑delivery inspection or before closing.

The claim was dismissed as the evidence did not establish a contractual breach and the wrong corporate defendant had been named.

Following dismissal of a claim after a short civil trial, the successful defendant sought approximately $61,000 in costs.

The court considered the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including fairness, proportionality, and the purposes of costs awards.

The defendant had made a Rule 49 offer to settle that was more favourable than the judgment obtained at trial, triggering the presumption of substantial indemnity costs after the offer date.

While recognizing the plaintiffs were self‑represented and faced financial hardship, the court held that costs must follow the event and cannot be determined based on sympathy.

Applying proportionality in a simplified procedure action, the court fixed a fair and reasonable all‑inclusive costs award of $50,000 payable by the plaintiffs.

The respondent was arrested for impaired driving and placed in a police cell under video surveillance.

She was videotaped using the toilet, which she argued violated her s. 8 Charter right to be free from unreasonable search and seizure.

The trial judge agreed and granted a stay of proceedings.

The Crown appealed.

The Superior Court of Justice upheld the finding of a s. 8 breach, concluding that the respondent had a reasonable expectation of privacy regarding the use of the toilet.

However, the court allowed the appeal regarding the remedy, finding that a stay of proceedings was not warranted as this was a case of first instance and the breach was not egregious enough to justify the ultimate remedy.

The stay was set aside.