Steven M. Fishbayn

A 17-year-old defendant was charged with second-degree murder in the death of an 18-year-old who was fatally stabbed during a group altercation outside a nightclub.

The Crown conceded that the evidence did not support a murder charge and sought a conviction for manslaughter.

The defendant claimed self-defence under section 34 of the Criminal Code.

The court found that while the defendant participated in escalating the initial conflict and used weapons when others did not, the Crown failed to prove beyond a reasonable doubt that the defendant's actions were unreasonable in the circumstances.

The court considered the group dynamic, the speed of events, and the defendant's age in applying a modified objective standard of reasonableness.

The defendant was acquitted of both murder and manslaughter.

The decision concerns the extradition of Adeyanju Olaniyan, Rachel O’Connor, and Timothy Balogun to the United States to face prosecution for an alleged fraud scheme involving the use of spoofed calls to obtain and resell medical supplies.

The court reviews the evidence, including voice identification, financial records, and circumstantial evidence, and finds that the evidence is sufficient to justify committal for extradition under the Extradition Act.

The court addresses the reliability of voice identification evidence and the legal standards for committal, ultimately granting the extradition applications.

In an extradition proceeding, the applicants (Balogun and O'Connor) brought a motion for disclosure of materials related to voice identification and information from co-operating witnesses.

The court dismissed the request for disclosure of items obtained or generated by US investigators (including most voice identification materials, and information from Individual 1 and Josue Rivera) due to a lack of jurisdiction, affirming that domestic disclosure obligations do not extend to foreign jurisdictions unless an abuse of process is alleged.

However, the court granted the request for disclosure of two Canadian bank audio recordings used as baseline comparators for voice identification, finding that the applicants met the "air of reality" test for manifest unreliability of the voice identification evidence, particularly concerning opinions about "distinct Canadian" and "distinct Nigerian" accents.

The court emphasized the importance of ensuring a fair extradition hearing based on admissible and reliable evidence.

The York Regional Police and the Crown brought a certiorari application to quash five defence subpoenas issued for a preliminary hearing.

The subpoenas sought to compel police officers to attend for discovery and to produce documents related to the policy of not audio recording booking areas.

The court held that while discovery is a legitimate ancillary purpose of a preliminary hearing, subpoenas cannot be used as a disguised attempt to obtain disclosure, circumventing the Stinchcombe/O’Connor regime.

The court quashed the subpoenas as they pertained to the production of documents but ordered that four police witnesses attend for discovery purposes, subject to the preliminary hearing justice's discretion to limit unreasonable discovery.

The applicant sought to quash two search warrants and exclude seized evidence under s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing the warrants were issued without reasonable and probable grounds.

The Crown contended the searches were lawful and, alternatively, that evidence should be admitted.

The court reviewed the information to obtain (ITO) based on five confidential informants and extensive police surveillance, applying the Garofoli and Debot tests for assessing search warrant validity and informant reliability.

The court found that the totality of circumstances, including corroborated informant tips and observed patterns of suspicious activity (such as chemical burns and continuous occupation of a barn suspected of housing a clandestine drug lab), provided reasonable and probable grounds for the warrants.

The application was dismissed, as no s. 8 Charter breach was found.

The applicant sought leave to cross-examine the affiant and sub-affiants of an Information to Obtain (ITO) for search warrants related to a methamphetamine lab.

The court dismissed the application, finding that the proposed cross-examination areas were either irrelevant, speculative, risked breaching confidential informant privilege, or would not elicit probative value to discredit the reasonable grounds for the warrant's issuance.

The court emphasized the high threshold for granting leave to cross-examine affiants, the importance of protecting informant identity, and the need to avoid unnecessary and time-consuming proceedings.

The applicant sought an order to release seized funds for legal fees and a declaration that s. 462.37(3) of the Criminal Code violates Charter rights if applied to such fees, creating a conflict of interest for counsel.

The Crown resisted, arguing lack of jurisdiction and prematurity for the constitutional issue.

The court found jurisdiction to release the funds, distinguishing previous case law, and determined the applicant had no other means to pay.

However, the court dismissed the declaratory relief, deeming the constitutional question premature as several contingencies must occur before s. 462.37(3) could apply, and emphasized that an offender truly unable to pay a fine in lieu of forfeiture would not face incarceration.

The accused applied for a stay of proceedings under s. 24(1) of the Charter or, alternatively, exclusion of evidence under s. 24(2), alleging breaches of ss. 7 and 9 arising from a lengthy investigative detention.

Police detained the accused for approximately 2.5 hours while investigating a stabbing and a gun call before locating a bag containing two loaded firearms.

The court held that while the initial investigative detention was justified, the duration exceeded permissible limits and therefore infringed s. 9 of the Charter.

However, the court found no causal connection between the detention and the discovery of the firearms and concluded the police conduct did not amount to an abuse of process.

A stay of proceedings was therefore not warranted.

During a jury trial involving alleged drug trafficking and criminal organization offences, the defence sought to call two expert witnesses to challenge the Crown’s interpretation of coded language in intercepted communications.

One proposed expert, a journalist, intended to testify about hip hop culture and marijuana terminology, while the other, a former police officer, had previously testified as an expert on drug-related street language but had not maintained his expertise.

Applying the admissibility framework from R. v. Mohan as refined by R. v. Abbey, the court found the proposed evidence either irrelevant, unnecessary, or offered by witnesses who were not properly qualified experts.

The court further held that admitting the evidence would provide minimal probative value while risking significant delay and prejudice to the trial process.

Both proposed experts were therefore excluded.

The accused brought an application under s. 520(1) of the Criminal Code to vary a judicial interim release order by removing a curfew condition.

The accused argued the Crown’s case had weakened due to new potential evidence and that trial delay justified permitting a normal social life pending trial.

The court held that the applicant had not demonstrated changed circumstances sufficient to justify the variation, particularly given the absence of evidence that he had pursued employment or schooling as previously contemplated.

The judge found that the secondary ground concerns underlying the earlier bail restrictions remained unresolved.

The application to delete the curfew condition was dismissed.

The accused, Jermaine Gager, brought an application for a mistrial during his joint trial for first-degree murder with co-accused Corey Smelie.

The application was based on the closing address of counsel for the co-accused, who improperly commented on his client's failure to testify and suggested he was afraid of retribution from the moving party.

The court found the remarks were improper but concluded that the resulting prejudice was not irremediable.

The court dismissed the mistrial application, holding that a specific curative instruction to the jury would be sufficient to ensure trial fairness.

In a joint first‑degree murder trial arising from a gang‑related shooting, the court considered whether the accused had put his character in issue through testimony denying gang affiliation and explaining incriminating letters written while in custody.

The court held that the accused’s narrative about his upbringing and alleged reluctance to join a gang implicitly asserted good character and therefore opened the door to cross‑examination on prior criminal conduct and gang‑related activity.

The court also ruled that certain previously redacted portions of letters written by the accused from custody could be admitted after reconsideration of a pre‑trial ruling, because the accused’s testimony materially altered the probative value of the evidence and risked misleading the jury.

The court concluded that the probative value of the additional passages outweighed their prejudicial effect and that severance of the co‑accused was not required.

In a first degree murder prosecution involving alleged gang rivalry, the accused applied to qualify a sociologist as an expert witness on street gangs.

The Crown opposed the qualification, arguing that the proposed expert lacked sufficient knowledge of the specific Toronto gangs at issue and that aspects of his methodology and impartiality were problematic.

The court conducted the two‑stage admissibility analysis for expert evidence under Mohan and Abbey, expressing significant concerns about the expert’s methodology, potential bias, inflated data samples, and limited familiarity with Toronto gangs.

Despite these reservations, the court held that the threshold for excluding defence expert evidence was not met and qualified the witness as an expert in limited areas relating to gang culture and behaviour.

The court then set detailed restrictions on the permissible scope of the expert’s testimony, particularly preventing opinions that would approach the ultimate issue of gang membership.

In a first-degree murder trial involving alleged street gang members, the Crown applied to qualify a police detective as an expert on Toronto street gangs.

The defence brought parallel applications seeking further disclosure of police records, including confidential informant databases, debriefing notes, training presentations, and wiretap intercepts from other investigations.

The court ordered redacted disclosure of the debriefing notes and presentations but denied access to the informant database and the massive wiretap files, finding the latter to be third-party records that did not meet the threshold for likely relevance.

The court qualified the detective as an expert but strictly limited the scope of his permissible opinion evidence to prevent him from usurping the jury's fact-finding function, particularly regarding whether specific individuals were gang members or whether a 'gang war' existed.