Sebastian Becker

Two appellants convicted of first degree murder following a home invasion robbery during which the victim was fatally shot appealed their convictions.

The first appellant, found to be the principal shooter, raised grounds including failure to consider defence of a third party, insufficient findings on forcible confinement, and reliance on inadmissible hearsay for identification.

The Court of Appeal dismissed his appeal, finding no air of reality to the defence, that the evidence supported his participation in forcible confinement as a joint principal, and that the identification evidence was not hearsay.

The second appellant successfully argued that the trial judge applied an objective rather than subjective mens rea standard under s. 21(2) of the Criminal Code for party liability for murder.

The Crown conceded the error.

The murder conviction was set aside and a conviction for manslaughter substituted, with a sentence equivalent to 12 years imposed.

The accused brought a Charter application challenging the lawfulness of police conduct during the execution of search warrants at his residence and the subsequent search of his cellular phone.

The court found multiple violations of sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms, including: an unreasonable manner of executing the search warrant at the residence; a warrantless search of the cellular phone; execution of a phone search warrant outside its authorized time frame; and failure to provide the accused with his right to counsel immediately upon arrest.

The court excluded all evidence obtained as a result of these breaches under section 24(2) of the Charter.

This decision addresses the admissibility of blood and medical records seized from the accused, who was charged with impaired driving and driving with an unlawful blood alcohol concentration (BAC) following a single-vehicle accident.

The accused challenged the search warrant and production order, arguing a lack of reasonable and probable grounds in the Information to Obtain (ITO) and that the ITO was misleading.

The court found that the ITO was misleading regarding the presence of a whisky bottle (implying it was open when its state was unknown) and that a witness's bald suspicion of impairment lacked sufficient factual basis.

Excising the misleading information, the court concluded that the remaining facts did not establish reasonable and probable grounds, rendering the seizure warrantless and a violation of section 8 of the Charter.

Applying the section 24(2) Grant factors, the court determined that admitting the evidence would bring the administration of justice into disrepute, primarily due to the serious impact on the accused's Charter rights, despite the officer's conduct not being particularly egregious.

The evidence was therefore excluded.

The appellant, Elias Gibb, appealed his conviction for second-degree murder, raising three grounds: the constitutionality of the Criminal Code's provocation provision (s. 232(2)), the trial judge's failure to provide a free-standing instruction on intoxication's impact on mens rea for murder, and an error in the W.D. instruction for co-accused.

The Court of Appeal dismissed the constitutional challenge based on a companion case.

Regarding intoxication, the court found no error, noting the defence strategically chose to integrate intoxication into the provocation defence rather than seeking a separate instruction.

The court also found that while the W.D. instruction was imperfect in its wording, it did not lead to an unfair verdict when read in context, as the jury was otherwise properly instructed on separate verdicts for each accused.

The appeal was dismissed.