R. Tomovski

During pretrial applications in a criminal proceeding, severe technological failures at the Milton courthouse involving remote Zoom interpretation and court reporting equipment caused significant delays and compromised the integrity of the record.

At its own instance, the Superior Court of Justice ordered that fully accredited French language interpreters attend the upcoming jury trial in person, and directed best efforts to secure in-person interpreters or functional simultaneous remote interpretation for the remainder of the pretrial applications.

The Crown brought a pretrial application under sections 714.1 and 715.25 of the Criminal Code to allow its witnesses and the prosecutor to participate by videoconference at an upcoming hearsay application.

The accused consented to the prosecutor appearing remotely but opposed the witnesses testifying remotely.

The court analyzed the factors under section 714.1, including the location of the witnesses, costs, the nature of the offences, and the accused's right to a fair hearing.

Finding that the majority of factors weighed against remote testimony, particularly given the serious nature of the charges and the logistical difficulties experienced during the Zoom hearing itself, the court dismissed the application for witnesses to testify remotely.

The accused was charged with assault, aggravated assault, and robbery with a firearm.

The Crown brought an application for directions on whether the common law regime from Seaboyer or s. 276 of the Criminal Code applied to evidence it sought to adduce regarding a co-assailant's statement that the complainant had previously 'raped' the accused.

The court held that s. 276 only applies to evidence adduced by the accused.

Assuming the Seaboyer regime applied, the court ruled the evidence was admissible as it was highly probative of motive and did not invite prohibited twin-myths reasoning.

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 murder trial, the Crown sought to admit hearsay statements made by the deceased concerning his belief that the accused had orchestrated a prior theft of his money.

The defence objected on the basis that the statements would introduce prejudicial and untestable allegations of bad character.

The court held that the deceased’s statements were admissible as evidence of the declarant’s state of mind and were relevant to establishing potential motive and context for confrontation between the deceased and the accused.

However, the court limited the scope of admissibility to the deceased’s belief itself and excluded statements recounting the accused’s alleged response about the stolen money.

The jury would receive a limiting instruction restricting the use of the evidence to motive rather than proof of bad character.

Following a jury conviction for second degree murder, the court determined the appropriate period of parole ineligibility under s.745.4 of the Criminal Code.

The Crown sought an 18‑year period while the defence argued for the statutory minimum of 10 years.

The court considered the offender’s criminal record, involvement in drug trafficking, illegal firearm possession, and conduct surrounding the offence, including returning to deliver a final fatal shot after the victim had fallen.

Although the victim had been the initial aggressor and armed with knives, the offender’s criminal lifestyle and aggravating conduct warranted a significant increase above the minimum.

A period of 16 years of parole ineligibility was imposed.

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.

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.

The accused was charged with possession of cocaine for the purpose of trafficking and possession of property obtained by crime after police observed him discard a package containing crack cocaine while fleeing.

The central issue was whether the accused possessed the drugs and whether cash found on him was proceeds of crime.

The court accepted the police officer’s evidence that he saw the accused drop the package and later recovered it from a garden below the porch.

The accused’s explanation regarding the origin of the cash and his possession of two cellphones was rejected as not credible.

The court concluded that the Crown proved beyond a reasonable doubt that the accused possessed cocaine for the purpose of trafficking and possessed cash obtained through trafficking.

The offender was convicted of three counts of fraud over $5,000 after defrauding three individuals of $139,000 through a fake investment scheme.

The Crown sought 21 to 36 months' imprisonment, while the defence sought an 18-month conditional sentence.

The court found that a conditional sentence was appropriate given the offender posed no danger to the community.

After applying 10 months of credit for pre-sentence custody and strict bail conditions, the court imposed a 13-month conditional sentence followed by three years of probation, along with a restitution order for the full amount defrauded.