Criminal and Quasi-Criminal Law - SCJ

Donald Musselman was charged with second-degree murder.

The Crown sought to introduce wiretap intercepts as part of its case-in-chief to prove identification and rebut an alternate suspect defence.

The court ruled that the intercepts, while probative, carried significant risks of moral and reasoning prejudice if introduced early, especially given their content (extrinsic criminal behaviour, gang discussions, etc.) and the uncertainty of defence witnesses testifying.

The court initially denied their introduction as part of the Crown's case but allowed their use for cross-examination if the defence called I.A. or Musselman to testify that I.A. was the shooter, as this would crystallize their probative value.

The accused, Matthew McLean, was sentenced for robbery, possession of an imitation firearm, and assault causing bodily harm.

The court considered aggravating factors, including the seriousness of the firearm offence and the violent nature of the robbery, alongside extensive mitigating factors such as the accused's youth (21 at the time of offence), lack of prior criminal record, strong family support, pro-social life, remorse, and efforts towards rehabilitation.

The court also considered the impact of systemic anti-Black racism in the justice system, as the accused is a young Black man.

The defence proposed a conditional sentence of two years less a day, followed by three years' probation, which the court accepted, finding it consistent with sentencing principles and posing little risk to community safety.

Sentencing decision arising from historic sexual offences against four child victims, including prolonged abuse of one complainant and school-based abuse of others while the offender was a teacher.

The court held that denunciation, specific deterrence, abuse of trust, the youth of the victims, and significant victim impact required a penitentiary sentence notwithstanding medical and religious accommodation arguments.

The court accepted limited credit for restrictive bail conditions under Downes, fixed total credit at three months, and imposed a net sentence of five years.

Ancillary orders including lifetime SOIRA, lifetime s. 161 prohibition, DNA, non-contact, and weapons prohibition were granted, and the sentence was ordered consecutive to an earlier child pornography sentence.

The accused brought a s. 8 Charter application seeking to exclude drugs seized during his arrest, arguing the search warrant for his alleged residence lacked sufficient grounds.

The court found that while the redacted Information to Obtain (ITO) was deficient and resulted in a s. 8 breach, the accused's standing was based solely on the Crown's theory of residency, which he later disavowed at trial.

Applying the Grant framework under s. 24(2), the court concluded there was no police misconduct in obtaining the warrant and the breach was purely technical.

The application to exclude the evidence was dismissed.

The accused was charged with possession of explosive substances and unsafe storage of firearms after police executed a public safety warrant at his residence.

The police stopped the accused away from his home, psychologically detained him without providing right to counsel, and conscripted him to physically assist in the search of his own residence where he handled and identified the seized items.

The court found multiple, serious Charter breaches including arbitrary detention, denial of right to counsel, violation of the right to silence, and unreasonable search and seizure.

Applying the Grant framework, the court excluded the physical evidence under s. 24(2) of the Charter.

The applicant, a mortgage broker charged with multiple counts of sexual assault and fraud, brought a pre-trial motion seeking the production of third-party financial and police records relating to the complainants and other witnesses.

The court applied the framework under sections 278.1 to 278.9 of the Criminal Code.

The court found that while some financial records were likely relevant to the fraud allegations and the narrative of the transactions, the applicant failed to establish the likely relevance of personal banking records and police occurrence reports.

The court ordered the production of specific records that met the threshold and denied the remainder.

Two young persons were tried for kidnapping for ransom using a firearm.

One of the accused was also charged with drug trafficking and possession of proceeds of crime.

The victim, who was uncooperative at trial, had provided a detailed video-taped statement to police shortly after his release.

The court applied the principled approach to hearsay and admitted portions of the victim's statement for its truth, finding substantial corroborative evidence of the kidnapping, the use of firearms, and the first accused's identity as a perpetrator.

The first accused was found guilty of kidnapping, firearms offences, drug trafficking, and possession of proceeds of crime.

The second accused was acquitted, as the fingerprint evidence and the victim's description were insufficient to prove his identity beyond a reasonable doubt.

The accused, an on-duty police officer, was convicted of dangerous driving causing death after striking a pedestrian while driving at a high speed to catch up with a surveillance team.

The Crown sought a 12-month jail term, while the defence sought a non-custodial disposition.

The court found genuine remorse and a diminished need for general deterrence compared to other driving fatalities.

The accused was sentenced to 8 months' imprisonment.

The accused brought applications to stay their charges of kidnapping, unlawful confinement, and assault under s. 24(1) of the Charter, alleging unreasonable delay under s. 11(b).

The total delay was estimated at 45 to 46 months.

The court applied the Jordan framework and found that the net delay exceeded the 30-month presumptive ceiling.

However, the court dismissed the applications, finding that the case was 'particularly complex' due to multiple accused, voluminous disclosure from three jurisdictions, and numerous pre-trial applications.

The court also found the delay reasonable under the transitional framework for cases instituted pre-Jordan.

The Crown applied for a review of a bail order releasing the respondent, who was charged with 22 offences including firearms offences and dangerous driving following a shooting and police chase.

The reviewing judge admitted new evidence consisting of the respondent's parole officer's notes, which showed a history of non-compliance.

The judge revoked bail, finding that the respondent's detention was necessary on both the secondary ground (public safety) and the tertiary ground (maintaining public confidence in the administration of justice), given the overwhelming strength of the Crown's case, the gravity of the offences, and the respondent's history of breaching court orders.

The offender was convicted by a jury of importing 1.34 kilograms of cocaine.

The Crown sought a sentence of 45 months, while the defence sought 30 months.

The court considered the offender's significant personal hardships, including a difficult upbringing, abuse, severe health challenges, and a long history of steady employment despite these issues.

Finding that the offender's unique circumstances justified a departure from the usual 3 to 5 year range for importing a kilogram of cocaine, the court imposed a sentence of 33 months imprisonment.

The accused was charged with 14 counts related to human trafficking, procuring, and material benefit involving two young women.

The Crown sought to admit cross-count similar fact evidence, which the court excluded due to substantial dissimilarities in the circumstances.

Regarding the first complainant, the court found her evidence unreliable and acquitted the accused of all related charges.

Regarding the second complainant, the court found no evidence of exploitation or coercion, resulting in acquittals for human trafficking and material benefit.

However, the court found the accused guilty of two counts of procuring for introducing and recruiting the second complainant to work in the sex trade.

The applicant, accused of fatally stabbing his son, brought a Corbett application to exclude his criminal record from being adduced at trial.

He argued the dated record would cause undue prejudice and lead to improper propensity reasoning by the jury.

The Crown opposed, noting the applicant's credibility was central and he had already introduced parts of his record and attacked the victim's character.

The court dismissed the application, finding the applicant's credibility was crucial and a properly instructed jury could use the criminal record for its limited purpose.

Three offenders were convicted of manslaughter following a botched home invasion robbery targeting a drug dealer.

The offenders planned to use extreme violence, bringing weapons and gasoline, but mistakenly encountered the target's brother, who was stabbed to death by one of the offenders.

The court found the offence to be an aggravated manslaughter due to the high degree of planning, the home invasion context, and the extreme violence intended.

The court sentenced the stabber to 13 years and the other two offenders to 11 years, less credit for pre-trial custody.

Requests for enhanced credit due to lockdown conditions were denied for lack of evidence of detrimental impact.

The applicant, charged with drug trafficking offences, brought a Charter application to exclude drug evidence seized following his arrest.

The applicant was initially detained for a drug investigation which yielded no evidence, but police continued to detain him for an additional 25 minutes to investigate a potentially stolen vehicle without informing him of the new reason for detention or re-cautioning him.

During this unlawful detention, police discovered cocaine near the applicant, leading to his arrest and a subsequent level 3 search that revealed more drugs.

The court found serious breaches of sections 9, 10(a), and 10(b) of the Charter and excluded the evidence under section 24(2), concluding its admission would bring the administration of justice into disrepute.

During a trial for second-degree murder, the accused applied to introduce character evidence of the deceased to support a claim of self-defence.

The accused had shot the deceased, who was attempting to steal his truck, and claimed the deceased made a threatening gesture as if holding a gun.

The proposed evidence included the deceased's prior convictions for fleeing police, outstanding property charges, a withdrawn assault charge, and photographs of the deceased with weapons.

The court dismissed the application, finding that the evidence did not demonstrate a propensity for violence or the use of weapons, and its admission would not legitimately assist the jury while risking prejudice.

The Crown applied to have the offender declared a Dangerous Offender following his convictions for aggravated assault and assault with a weapon against five female strangers.

The offender had struck the women in the head with a hammer or hard object from behind.

The court found that the offender met the criteria for a Dangerous Offender designation under s. 753 of the Criminal Code.

However, relying on psychiatric evidence that the offender's risk could eventually be managed in the community, the court declined to impose an indeterminate sentence.

Instead, the court imposed a determinate sentence of 12 years' imprisonment, less enhanced pre-sentence custody credit, followed by a 10-year Long Term Supervision Order.

The accused was stopped by police for driving with an unlit rear license plate.

During the stop, an officer spotted a knife on the passenger seat, leading to the accused's arrest.

A subsequent search of the vehicle yielded 12.12 grams of crack cocaine, $1,300 in cash, and a digital scale.

The court dismissed the accused's Charter applications under sections 8, 9, and 10(b), finding the stop, arrest, and search lawful.

At trial, the court rejected the accused's claim that the drugs were for personal use and convicted him of possession for the purpose of trafficking and possession of a prohibited weapon, but acquitted him of possession of proceeds of crime and possession of a weapon for a dangerous purpose.

The accused were charged with numerous offences related to dog fighting, firearms, and drug trafficking.

They brought a pre-trial application seeking a stay of proceedings, arguing their right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The total time from charge to the anticipated end of trial was calculated at 30 months and 28 days, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court found that the delay was primarily caused by late disclosure and the Crown's ill-advised decision to join a co-accused late in the proceedings.

Finding no exceptional circumstances to justify the delay, the court granted the application and stayed all charges.

This ruling addresses a defence application to edit three statements made by accused Joshua Barreira, which were previously ruled admissible in his first-degree murder trial.

The court considered principles of post-offence conduct, the right to silence, and the probative value versus prejudicial effect of various parts of the statements.

The judge ordered specific redactions from Statement #1 and Statement #2, including references to past criminal activity, irrelevant personal comments, and discussions about police taking information to the Crown for a potential deal.

The court also ruled that Joshua's willingness to undergo a polygraph test was admissible, given the parties' agreement and the lack of substantial prejudicial effect.