S. Smordin

During a re-trial for second-degree murder, the accused brothers sought to have the partial defence of provocation left to the jury.

The principal shooter, John, argued he was provoked by the victim's threats.

The court found an air of reality to John's claim, despite evidence of prior threats and preparation.

However, the court ruled that provocation is not available in law to an aider, Mato, as it only applies to the person who committed the murder.

Furthermore, there was no air of reality to provocation for Mato based on the evidence.

In a pre-trial ruling for a second-degree murder case, the court determined the appropriate jury selection procedure following the enactment of Bill C-75, which abolished peremptory challenges.

The defence proposed combining the challenge for cause and stand-aside inquiries.

The court rejected a combined approach but permitted a limited expansion of the challenge for cause questions.

The court established a procedure where, after the challenge for cause, a specific question is asked to assess juror competence, allowing counsel to make submissions on whether the judge should exercise the enhanced stand-aside power under s. 633 of the Criminal Code to maintain public confidence in the administration of justice.

The Crown brought an application regarding the jury selection procedure for a second-degree murder trial during the COVID-19 pandemic.

The Crown proposed that the Sheriff divide the jury panels into smaller groups in the absence of the accused, arguing the proposed 'B.C. Model' violated the Criminal Code.

The court dismissed the Crown's application, finding that dividing the panels in the absence of the accused would violate their right to be present at trial under section 650(1) of the Criminal Code.

The court adopted the B.C. Model, which allows for random selection and identification of jurors in open court with the accused present, while accommodating physical distancing requirements.

The accused, charged with second-degree murder, brought a Scopelliti application to adduce evidence of the deceased's reputation for violence and habit of keeping a hatchet.

The Crown opposed the application, arguing the evidence was unreliable and speculative.

The court reviewed the proposed evidence from five witnesses, the deceased's criminal record, and two police occurrence reports.

Applying the test for relevancy, the court admitted the majority of the evidence, finding it probative of the deceased's aggressive temperament and relevant to the accused's anticipated claims of self-defence and provocation, while excluding certain hearsay and highly dated reports.

The Crown brought an application to admit utterances made by the deceased shortly before his death as exceptions to the hearsay rule.

The deceased, who had been severely stabbed, uttered words including 'gun' and 'cousin' to first responders and on a 911 call.

The court found that the deceased had a settled and hopeless expectation of death given the severity of his injuries, satisfying the test for a dying declaration.

Alternatively, the court held the utterances were admissible as spontaneous statements made under the stress of a dramatic event, with no possibility of concoction.

The evidence was ruled admissible.

The accused, charged with first degree murder, brought a Rowbotham application seeking state-funded counsel after Legal Aid Ontario refused funding.

The court considered whether the accused had exhausted Legal Aid appeals, was indigent, and whether counsel was necessary to ensure a fair trial.

The evidence showed the accused had no income while incarcerated, had exhausted available financial resources, and had not deliberately depleted assets to qualify for assistance.

Given the seriousness of the charge, complexity of the case, and the accused’s limited education and legal experience, the court held that representation by counsel was essential to preserve fair trial rights under s. 7 of the Charter.