Salvatore Caramanna

Philip Fitzpatrick brought a pre-trial application seeking leave to lead evidence and cross-examine witnesses regarding a Crown witness, Marquis Grant-Mentis, and his alleged involvement in the murder of Brandon Hall, or alternatively, to argue that one of the perpetrators was a black man other than Mr. Fitzpatrick.

The Crown opposed, arguing no air of reality to the defence.

The court applied the 'air of reality' test, considering whether the evidence could support the inference of an alternate suspect and establish a sufficient connection and opportunity.

The court found that the circumstantial evidence, including eyewitness testimony, surveillance video interpretation, shoe exchange, and the third party's knowledge of intimate details, met the 'opportunity threshold' and provided an air of reality to the third-party suspect defence.

The application was allowed.

Defence counsel for Mr. Fitzpatrick and Mr. Wright brought a motion for a mistrial, alleging that Crown counsel adduced impermissible bad character evidence ("snitches get stitches") during re-examination of a witness, thereby wounding trial fairness.

The Crown argued the re-examination was appropriate given the cross-examination.

The court denied the motion, finding that while the defence was prejudiced by a prior ruling limiting cross-examination on a witness's inconsistent statements, this could be remedied by allowing further cross-examination.

The court concluded that the "snitches get stitches" evidence, while potentially prejudicial, did not rise to the level requiring a mistrial, especially with proper jury instructions, and did not constitute a "catastrophic" defect to trial fairness.

In a first-degree murder trial, the defence brought a motion for a mistrial, alleging numerous instances of prosecutorial misconduct during the Crown's closing address to the jury.

The alleged errors included misstating evidence, introducing unelicited evidence, mocking defence counsel and witnesses, and improperly commenting on the burden of proof.

The court reviewed each alleged impropriety, finding some instances of improper conduct but concluding that, individually or cumulatively, they did not fatally wound the trial process or deprive the accused of a fair trial to the extent that a mistrial was warranted.

The motion was dismissed, with the court indicating that corrective instructions would be given to the jury.

Philip Fitzpatrick, jointly charged with murder, brought a K.G.B. application to admit two police statements made by his mother, Cheryl Hall, for the truth of their contents regarding the shooter's identity.

The Crown was not opposed if the statements were edited and Ms. Hall could be cross-examined.

The court applied the principled exception to the hearsay rule, finding necessity due to Ms. Hall's recantation/unwillingness to adopt her prior statements, and threshold reliability due to procedural safeguards (availability for cross-examination, videotaping) and circumstantial guarantees (statements made hours after shooting, no influence, no leading questions, no motive to lie).

The court ruled the statements admissible for their truth, to be shown to the jury in their entirety with appropriate edits, and permitted the Crown to cross-examine Ms. Hall on the identification and her state of mind.

In a murder trial, the defendants brought motions regarding the admissibility of evidence.

Philip Fitzpatrick sought to admit antemortem statements by the deceased concerning a dispute over counterfeit money and guns, arguing relevance to witness credibility and narrative.

Evan Wright sought to cross-examine a witness on the deceased's drug trafficking activities, also arguing narrative.

The Crown opposed both.

The court dismissed the application for antemortem statements under the state of mind exception, finding them not relevant and highly prejudicial, though allowing limited questioning on the deceased being ripped off and taking guns.

The court also dismissed the application to admit evidence of the deceased's drug trafficking, finding it irrelevant and highly prejudicial, noting the jury already had sufficient information about the deceased's background.

The applicant, charged with first-degree murder alongside a co-accused, applied for severance under s. 591(3)(b) of the Criminal Code.

He argued that a joint trial would violate his s. 11(b) Charter right to a trial within a reasonable time, as the co-accused's counsel was unavailable until six months past the Jordan ceiling.

The court dismissed the application, finding that the strong public interest in joint trials for co-accused alleged to have acted in concert outweighed the anticipated delay, which was partially justified by the complexity of a multi-accused trial and the impact of the COVID-19 pandemic.

The applicant sought certiorari to quash his committal for trial on a charge of first-degree murder, arguing the preliminary inquiry justice committed jurisdictional error by relying on insufficient circumstantial evidence of identity.

The reviewing judge found no jurisdictional error, concluding that the preliminary inquiry justice properly engaged in a limited weighing of the evidence, including DNA on a glove, video surveillance, clothing similarities, and association with the co-accused, to determine that a reasonable inference of guilt was available.

The application was dismissed.

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 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 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 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 appellant challenged the constitutionality of three subsections of the child luring provision in a police sting operation context: the age presumption under s. 172.1(3), the reasonable steps requirement under s. 172.1(4), and the one-year mandatory minimum sentence under s. 172.1(2)(a).

The majority held that s. 172.1(3) infringes s. 11(d) of the Charter and cannot be saved under s. 1, but that s. 172.1(4) does not infringe s. 7 because it only limits a defence rather than providing an independent pathway to conviction.

Because the trial judge convicted on a legally unsound basis — failure to take reasonable steps — without finding proof beyond a reasonable doubt of actual belief, the conviction was set aside and a new trial ordered.

The constitutionality of the mandatory minimum was left to the new trial judge.

Karakatsanis J. concurred but would have also declared the mandatory minimum unconstitutional.

Abella J. dissented in part, finding s. 172.1(4) also unconstitutional and that an acquittal should be entered.

The accused was convicted of child luring by means of computer contrary to section 172.1(1)(b) of the Criminal Code after engaging in sexual conversations with a police officer posing as a 14-year-old girl on Craigslist.

The accused challenged the constitutionality of three provisions: the presumption of belief in section 172.1(3), the reasonable steps requirement in section 172.1(4), and the mandatory minimum one-year sentence in section 172.1(2)(a).

The trial judge found section 172.1(3) violated the presumption of innocence under section 11(d) of the Charter and was not justified under section 1.

The trial judge upheld section 172.1(4) as constitutional under section 7 of the Charter.

The trial judge found the mandatory minimum sentence grossly disproportionate under section 12 of the Charter and imposed 75 days intermittent incarceration instead.

Both the conviction appeal and Crown's sentence appeal were dismissed.

The accused was charged with luring a child by means of computer contrary to section 172.1(1)(b) of the Criminal Code.

The Crown proceeded by indictment, triggering a mandatory minimum sentence of one year imprisonment.

The court conducted a Charter challenge to the constitutionality of subsections (3) and (4) of section 172.1, finding subsection (3) unconstitutional but subsection (4) constitutionally valid.

The accused was convicted based on his failure to take reasonable steps to ascertain the age of the online interlocutor, who was actually an undercover police officer posing as a 14-year-old.

The court then addressed the accused's Charter challenge to the mandatory minimum sentence under section 12 of the Charter, finding it grossly disproportionate to the circumstances of the offence and the offender's personal characteristics.

The accused was charged with luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code.

The Crown proceeded by indictment.

The accused posted a personal advertisement on Craigslist seeking a "daddy/daughter" role-play partner and engaged in sexual communications with a person he believed to be a 14-year-old girl named Mia.

The person was actually an adult police officer conducting an undercover investigation.

The accused claimed he believed he was communicating with an adult engaged in consensual role-play.

The court found the accused guilty, determining that while there was a reasonable doubt as to his subjective belief regarding the age of the person, he failed to take reasonable steps to ascertain the age of the person with whom he was communicating.

The applicant was charged with luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code.

The applicant brought a Charter application challenging the lawfulness of the police obtaining his cell phone subscriber information from a telecommunications provider without a warrant.

The applicant argued that the disclosure of cell phone subscriber information was analogous to internet subscriber information and should require judicial authorization under the principles established in R v. Spencer.

The court rejected this argument, finding that cell phone subscriber information does not attract the same reasonable expectation of privacy as internet subscriber information, and therefore no breach of section 8 Charter rights occurred.

The applicant was charged with luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code.

The applicant brought a Charter application challenging the constitutionality of the combined operation of subsections 172.1(3) and 172.1(4).

Subsection (3) creates a presumption that a representation of being underage constitutes proof of the accused's belief in that age, rebuttable only by evidence to the contrary.

Subsection (4) provides that honest belief in legal age is not a defence unless the accused took reasonable steps to ascertain the person's age.

The applicant argued these provisions violated section 7 (fundamental justice) and section 11(d) (presumption of innocence) of the Charter.

The court found the presumption in subsection (3) unconstitutional as applied in concert with subsection (4), as it could compel conviction despite reasonable doubt about the accused's belief.