Stephen Eric Bernstein

The applicant, charged with drug trafficking and proceeds of crime offences, brought applications challenging the admissibility of evidence seized during a search of his residence.

He argued that the Step Six procedure under R. v. Garofoli for reviewing redacted search warrant informations violates section 7 of the Charter by denying the right to make full answer and defence.

He also argued that the redacted Information to Obtain (ITO) lacked sufficient detail to justify the warrant, violating his section 8 Charter rights.

The court dismissed both applications, finding that the Step Six procedure provides a fair hearing in context and that the judicial summaries of the confidential informant's information provided sufficient grounds to uphold the warrant.

The appellant appealed a conviction for refusing to provide a breath sample, raising two grounds: whether the officer had reasonable suspicion for the demand under s. 254(2) of the Criminal Code, and whether the appellant had a reasonable excuse due to a mistake of law.

The court found that the trial judge correctly determined that the officer had reasonable suspicion based on the totality of circumstances, including the smell of alcohol from the vehicle and later from the appellant's breath in the cruiser.

The court also rejected the argument of reasonable excuse based on officially induced error, affirming the trial judge's assessment of the evidence.

The appeal was dismissed.

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.

The accused pleaded guilty to common assault against his former common-law partner and failing to comply with a recognizance by consuming alcohol.

The assault occurred in the victim's home while their child was present.

The accused had a prior criminal record including domestic violence and was on bail for sexual assault at the time.

The court weighed the aggravating factors of the domestic context and the child's presence against the mitigating factors of the guilty plea and the accused's recognition of his alcohol abuse problem.

The court imposed a sentence of 12 months custody, credited as time served, followed by two years of probation.

In a criminal trial involving allegations of sexual misconduct against a minor, the court considered whether statements made by the accused to his former spouse and to his pastor were made to “persons in authority,” thereby requiring the Crown to prove voluntariness beyond a reasonable doubt.

The accused argued that the statements were induced after both individuals threatened to contact police.

Applying the framework from Hodgson, the court held that the test requires both a subjective belief by the accused that the listener could influence the prosecution and an objectively reasonable basis for that belief grounded in a relationship with police or prosecutorial authorities.

The evidence did not establish that the accused believed either individual was acting as an agent of the police or prosecution.

Consequently, the recipients were not persons in authority and the confessions rule did not apply.

The statements were therefore admissible.

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 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 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 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 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 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.

The accused, Leon Alexander and Edmund Benjamin, were charged in relation to the stabbing deaths of Andy James and Brandon Ramdeen following a boat cruise.

The Crown alleged that Alexander stabbed James or was a party to the stabbing, and that both accused participated in a group assault on Ramdeen during which he was fatally stabbed by another individual.

The trial judge found that while Alexander assaulted James, he did not stab him and his actions were not a significant contributing cause of death.

The judge also found the identification evidence regarding the assault on Ramdeen to be unreliable.

Both accused were acquitted of all charges.

During a murder trial, the applicant sought to introduce the police statement and examination-in-chief of an unavailable witness from a previous related trial under the principled exception to the hearsay rule.

The applicant did not seek to introduce the cross-examination from the previous trial.

The court dismissed the application, finding that without the cross-examination or an adequate substitute, the threshold reliability of the statements was not established due to significant inconsistencies and credibility issues.

In a homicide prosecution arising from two fatal stabbings following a boat cruise event, the Crown sought to admit hearsay statements made by the deceased identifying the assailant and statements of unidentified bystanders overheard during a related fight.

The court considered the res gestae exception and the principled approach to hearsay under authorities including Starr, Mapara, and Khelawon.

Although necessity was established for the deceased’s statements, the court found reliability lacking due to contradictory identifications, the dark and chaotic conditions of the incident, and the declarant’s misidentification of another individual.

The court also rejected the admission of anonymous bystander statements because their circumstances did not demonstrate spontaneity or reliability and carried a high risk of prejudice.

Only the deceased’s initial spontaneous exclamations describing the stabbing, but not identifying an assailant, were admitted.

Two aboriginal offenders were sentenced following guilty pleas to serious offences.

The first offender pleaded guilty to possession of stolen motor vehicles, operating vehicles while disqualified, robbery, and use of an imitation firearm in commission of an indictable offence.

The second offender pleaded guilty to dangerous operation of a motor vehicle causing bodily harm and failing to stop for police pursuit causing bodily harm.

The court applied Gladue principles regarding sentencing of aboriginal offenders while emphasizing denunciation and deterrence given the seriousness of the offences and prior criminal records.