S. A. McLean

Several accused charged with robbery with a firearm, possession of marijuana for the purpose of trafficking, and attempted murder brought applications to exclude or edit numerous text and BBM messages that the Crown sought to introduce at trial.

The applicants argued the messages constituted impermissible similar fact evidence and risked unfair prejudice by suggesting involvement in multiple robberies.

Applying the principles governing similar fact evidence from R. v. Handy, the court assessed whether the probative value of each message outweighed its prejudicial effect.

The court held that references suggesting multiple robberies or unrelated criminal activity should generally be edited or excluded, while messages directly relevant to the planning or execution of the charged robbery were admissible.

The court therefore ordered specific edits or exclusions for numerous messages and permitted others with potential limiting instructions to the jury.

The accused brought a pre‑trial application seeking exclusion of evidence relating to firing‑pin indentations on three cartridges recovered from the scene of an alleged robbery and attempted murder.

Police had test‑fired two of the cartridges during the investigation, which obliterated the original firing‑pin impressions and prevented later forensic comparison with a handgun recovered a year later.

The accused argued that the loss of the original impressions constituted unacceptable negligence and breached their right to make full answer and defence under s. 7 of the Charter, warranting exclusion of the evidence.

The court found that the police conduct amounted to unacceptable negligence and therefore constituted a breach of s. 7.

However, the court held that exclusion of the evidence was not an appropriate remedy because the potential prejudice was speculative and could be addressed through cross‑examination and a jury instruction regarding the Crown’s failure to preserve evidence.