S. Bernstein

In a jury trial arising from a planned home invasion robbery, the court delivered written reasons for several evidentiary and procedural rulings made during the trial.

The accused sought a mistrial based on the Crown’s opening statement, challenged the admissibility of autopsy photographs and expert textile‑damage evidence, and requested a directed verdict removing first‑degree murder from the jury’s consideration for two accused.

The court dismissed the mistrial application, admitted the photographs and expert evidence, and held that there was sufficient evidence on which a jury could find the relevant accused to have been substantial and integral causes of death under the constructive first‑degree murder provisions of the Criminal Code.

Additional rulings addressed corrective jury instructions, the absence of a required Vetrovec warning for a key civilian witness, and a defence request that the Crown or court call additional witnesses.

The jury ultimately convicted one accused of first‑degree murder and the others of second‑degree murder.

In a first-degree murder trial, the Crown sought to admit several categories of hearsay statements made by the deceased, including statements to a school friend and her sister, text messages to her mother, personal writings, and contextual evidence regarding discipline within the household.

The defence opposed portions of the evidence, arguing that it constituted inadmissible hearsay or impermissible prior discreditable conduct whose prejudicial effect outweighed probative value.

Applying the analytical framework for hearsay admissibility, including the state of mind exception and the principled exception requiring necessity and threshold reliability, the court held that most of the deceased’s statements were admissible as either non-hearsay evidence of state of mind or under the principled exception.

Evidence concerning family discipline and prior incidents was also admitted as relevant contextual evidence with probative value exceeding potential prejudice.

One diary entry dated more than a year prior to the death was excluded because its limited probative value was outweighed by its potential prejudicial impact.

In a joint first‑degree murder prosecution, one accused brought a pretrial motion seeking to exclude the police statements of a co‑accused or, alternatively, to sever the trials.

The applicant argued that the statements implicated him in the killing and would be highly prejudicial because the jury might improperly use them as evidence against him despite limiting instructions.

The court held that the statements were highly probative against the co‑accused and formed an important part of the Crown’s case.

Applying the principles governing severance under s. 591(3) of the Criminal Code and the presumption favouring joint trials, the court concluded that any prejudice could be managed through editing of the recordings and strong jury instructions.

The motion to exclude the statements or order severance was dismissed.

In a pretrial ruling in a first degree murder prosecution, the accused sought to challenge prospective jurors for cause on the basis of potential race‑based bias and requested that the court adopt a multiple‑choice formulation of the challenge question derived from prior jurisprudence.

The Crown opposed the request and argued that the traditional Parks question should be used.

The court held that a question permitting prospective jurors to answer in their own words better assists the triers in evaluating sincerity and bias than a structured multiple‑choice response.

The application to conduct a challenge for cause was allowed, but the court declined to adopt the proposed multiple‑choice wording and instead directed that the traditional Parks formulation, or a modified version used in prior authority, be employed.

The court further held that the question would not be provided in writing to jurors in the witness box.

In a first-degree murder trial, the Crown brought a pretrial application to admit the videotaped police interviews of the eight-year-old brother of the deceased under the principled exception to the hearsay rule.

The child had returned to Jamaica and his mother refused to permit him to testify.

While the necessity requirement was met, the court found the statements lacked threshold reliability due to material inconsistencies, the child's tendency to guess or make assumptions, and the lack of opportunity for cross-examination.

The Crown's application to admit the hearsay evidence was dismissed.

In a pre‑trial evidentiary motion in a homicide prosecution, the accused sought to exclude several items of proposed Crown evidence on the basis that their prejudicial effect outweighed their probative value.

The court applied the common law balancing test governing admissibility and considered whether the evidence would undermine trial fairness or invite improper jury reasoning.

Several graphic autopsy photographs and circumstantial forensic evidence were permitted where they illustrated the nature of the injuries or were relevant to the location and manner of the assault.

Evidence consisting of a written message on a pacifier package was excluded from the Crown’s case due to minimal probative value and risk of prejudice, though it could be used in cross‑examination if the accused testified.

A baseball bat potentially linked to the killing and a partial fingerprint found at the scene were admitted, with concerns about evidentiary weight left for the jury.

In a pre‑trial voir dire in a first degree murder prosecution, the accused sought to exclude a police interview conducted the day the victim’s body was discovered.

The court considered whether the accused was detained during questioning at the police station and therefore entitled to rights to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

Applying the detention factors from R. v. Moran and the objective test for psychological detention articulated in R. v. Grant, the court found the accused was effectively detained when interviewed after being transported in a locked police cruiser and held in an interview room for hours without a caution.

Because the accused was not advised of his right to counsel, his Charter rights were breached.

The statement was excluded under s. 24(2), and the court noted that it would also have had a reasonable doubt regarding voluntariness.