Stephanie DiGiuseppe

The applicant sought a bail review to vacate a detention order after being charged with multiple domestic violence offences, including sexual assault and assault causing bodily harm.

The applicant argued a material change in circumstances occurred because the complainant recanted her allegations in multiple sworn statements and the applicant had already served significant pre-trial custody.

The court found that the recantation significantly weakened the Crown's case and that the time spent in pre-trial custody approached the likely sentence if convicted.

The application was granted, and the applicant was released on a recognizance with strict conditions, including electronic monitoring.

On a Crown application in a murder trial, the court considered whether preliminary inquiry testimony of an unavailable inmate witness could be admitted under s. 715(1) of the Criminal Code.

The court held that the Crown proved on a balance of probabilities that the witness was absent from Canada, largely through hearsay evidence with sufficient indicia of reliability.

However, the court exercised its discretion to exclude the evidence because admission would operate unfairly to the accused, given the centrality of credibility, the witness's potential motive to shift blame, significant internal and external inconsistencies, the availability of surveillance video never put to the witness, and new evidence arising after the preliminary hearing.

The Crown application was dismissed.

In a murder prosecution, the Crown sought leave under s. 9(2) of the Canada Evidence Act to cross-examine a Crown witness who was a co-accused and had previously given a videotaped statement pursuant to a plea agreement.

The defence argued the statement was unreliable because of pressure arising from plea negotiations, fear of sanctions, and an apparent inconsistency with surveillance evidence.

The court held that those concerns could be adequately addressed through cross-examination and found the videotaped statement to be a reliable record given under circumstances indicating the witness understood the importance of telling the truth.

Applying the ends of justice analysis, the court granted leave to cross-examine the witness on the inconsistent portion of the statement.

The accused moved for a directed verdict of acquittal at the close of the Crown's case on charges of second degree murder and the included offence of manslaughter arising from an inmate's suicide in custody.

The court interpreted s. 222(5)(c) of the Criminal Code, defined the elements of threat, fear of violence, and causation, and held there was some evidence on which a properly instructed jury could find that the moving party's conduct, including making and sending a noose, constituted a threat or contributed significantly to the victim's fear of violence and suicide.

Applying the directed verdict test and the circumstantial evidence framework, the court held the case should go to the jury on second degree murder and manslaughter.

The alternative theory that the moving party aided and abetted another inmate was removed from the jury for lack of evidence.

Accused persons charged following a large police investigation sought disclosure of source materials underlying wiretap authorizations to support anticipated Garofoli and Dawson applications.

The defence argued that all investigative materials, including pre‑Part VI materials referenced or relied upon by the affiant, were presumptively relevant and disclosable under Stinchcombe principles.

The Attorney General of Ontario argued that disclosure should be limited to materials relevant to the accused’s ability to make full answer and defence at trial unless the defence first demonstrated a reasonable possibility that additional materials would assist in challenging the authorization.

The court acknowledged conceptual difficulties with the Crown’s narrower approach but held that existing authorities required an accused to meet a minimal relevance threshold before obtaining additional disclosure beyond what was before the authorizing judge.

Applying principles of judicial comity and following prior decisions adopting that approach, the court dismissed the disclosure applications.

At a preliminary inquiry into a mass shooting at the Toronto Eaton Centre, the Crown sought committal on two counts of first-degree murder.

The accused was charged with nine counts total, including two counts of first-degree murder and five counts of attempted murder.

The court found that the attempted murder charges should be reduced to aggravated assault, as there was no evidence of specific intent to kill the five survivors.

The central issue was whether there was sufficient evidence to support committal on first-degree murder rather than second-degree murder for the two victims who died.

The court found that motive (revenge for a prior stabbing) combined with the deliberate and calculated nature of the shooting provided sufficient evidence for a reasonable jury to infer planning and deliberation.

The applicant, charged with sexual assault and other offences, sought a stay of proceedings under s. 24(1) of the Charter due to the police's failure to retain a 2007 videotaped statement made by the complainant.

The court found that the Crown failed to establish that the loss of the video was not due to unacceptable negligence.

Given that the complainant's credibility was the central issue and she had a history of recantations and perjury, the loss of the video irreparably prejudiced the applicant's ability to make full answer and defence.

The court concluded this was one of the clearest of cases and ordered a stay of proceedings on the sexual assault count.

The accused brought an application seeking a stay of proceedings for unreasonable delay under s. 11(b) of the Charter after approximately 34.5 months in custody awaiting trial on multiple drug and firearm trafficking charges arising from a large multi‑accused investigation.

Applying the framework from R. v. Morin and R. v. Askov, the court examined the allocation of delay between inherent time, defence actions, Crown conduct, and institutional delay.

The court found the prosecution involved complex multi‑accused proceedings, extensive disclosure, a preliminary inquiry including a Dawson application challenging wiretap authorizations, and multiple defence‑initiated adjournments and counsel changes.

Institutional delay was determined to be within acceptable limits and much of the elapsed time was attributable to inherent or defence‑related factors.

The applicant failed to establish significant prejudice beyond the normal hardships of pre‑trial custody.

The application for a stay of proceedings was therefore dismissed.

The accused brought a constitutional application challenging the exclusion of common-law spouses from the spousal incompetency rule in s. 4 of the Canada Evidence Act and the related common law.

The court considered whether the distinction between married spouses and common-law partners violated s. 15(1) of the Canadian Charter of Rights and Freedoms.

Applying evolving equality jurisprudence following Quebec (Attorney General) v. A., the court held that denying common-law partners the protections afforded to married spouses constituted discrimination based on marital status.

The court further concluded that the infringement was not justified under s. 1 of the Charter because excluding common-law spouses was not rationally connected to the objective of protecting conjugal confidences and marital harmony.

The appropriate remedy was to read common-law spouses into s. 4 of the Canada Evidence Act and the common law spousal incompetence rule.

The Crown brought a motion seeking to introduce evidence from several witnesses that would disclose prior criminal conduct and other discreditable acts by the accused in a murder prosecution.

The Crown argued the evidence was relevant to motive, the relationship between the accused and witnesses, and consciousness of guilt, including allegations that the accused plotted to eliminate a key witness.

The court applied the established rule that evidence of disreputable conduct is presumptively inadmissible unless its probative value outweighs its prejudicial effect.

The court held that most of the proposed evidence formed part of the narrative explaining the motive and relationships surrounding the alleged homicide and was therefore admissible with limiting instructions.

Certain evidence, including alleged assaults on a spouse, buried firearms, and an ante‑mortem statement attributed to the deceased, was excluded as marginally relevant and of questionable probative value.

The Crown sought a ruling that statements made by the accused to police during two interviews in 2006 were voluntary and admissible at trial.

The defence argued the statements were induced by promises of protection for the accused’s family and that the failure to provide Charter cautions violated ss. 7 and 10(b).

The court held the accused was not detained in relation to the investigation and that the interviews were investigative in nature while he was incarcerated on unrelated matters.

Applying the legal detention test, the court found no inducements or promises of favour tied to providing information.

The statements were therefore found to be voluntary and admissible.

The applicant, charged with first degree murder, sought to vary a s. 516(2) non-communication order to remove his common-law spouse, a material witness for the Crown, from the list of prohibited persons.

The applicant argued the order unfairly interfered with their relationship and their intention to marry.

The court dismissed the application, finding strong evidence that the spouse had previously expressed fear of the applicant, sought police protection, and that the applicant had a history of threatening and counseling the murder of other witnesses.

The court held that the societal interest in protecting witnesses and ensuring a fair trial justified the continued non-communication order.

The appellant appealed his conviction, arguing that the trial judge erred in assessing the complainant's credibility.

The Court of Appeal dismissed the appeal, finding that the trial judge was aware of the complainant's shortcomings as a witness but reasonably accepted the fundamental point of her evidence that the appellant punched her in the head.