A simple rule in many respects but often misunderstood and overlooked.

The automatic excision rule requires courts to remove any information obtained through a Charter breach from an Information to Obtain (ITO) before assessing whether there were reasonable and probable grounds for a search or arrest. If the remaining information can't support the state action on its own, the warrant or arrest is invalid. The rule ensures the state can't rely on unconstitutional conduct to justify privacy intrusions.

ChatGPT conducted some Deep Research on one of my favourite topics: Automatic Excision. That research was then fed into NotebookLM’s studio. And this pod was born. It’s not perfect but it gives the listener a primer or refresh on the legal principles at play.

Automatic Excision is basically the idea that police can’t benefit from unconstitutionally obtained information. When they illegally obtain information by breaching your rights, they can’t use that ill-gotten info to inform their future grounds to search or arrest you.

So today we have AI doing double duty: ChatGPTxNotebookLM. Enjoy!

Ontario courts have long recognized the importance of s. 726, but they have also clarified that a lapse in offering allocution does not automatically void the sentencing outcome.

In R. v. Bynoe, 2025 ONCA 274, for example, the Ontario Court of Appeal dealt with a sentencing judge’s failure to invite the offender to speak. The transcript showed the offender was not offered any opportunity to address the court before sentence. The Crown on appeal conceded this was an error under s. 726, but characterized it as an inadvertent oversight – noting that Bynoe was represented by counsel who did not indicate that Bynoe wished to speak at the time.

The Court of Appeal agreed the trial judge erred, yet ultimately dismissed the sentence appeal, finding no basis to disturb the sentence in that case. This outcome is in line with prior Ontario decisions (e.g. R. v. Holub & Kufrin (2002 ONCA) and R. v. Legault (2005 ONCA)) holding that a mere failure to ask “Do you have anything to say?” will not automatically vitiate the sentence​.

In other words, appellate courts will acknowledge the error but assess whether it actually caused any injustice or impacted the sentence.

In this episode of The Full Court Press, ChatGPT discusses the recent Ontario Court of Appeal case R. v. Copeland (2025 ONCA 278), focusing on the partial defence of provocation. We outlined the key facts: Copeland was convicted of second-degree murder after claiming self-defence during a fatal confrontation with his girlfriend. He attempted, late in the trial, to also argue provocation based on being accused of theft and attacked with a knife.

We clarified the elements of provocation under Canadian law—both objective (a wrongful act or insult sufficient to provoke an ordinary person) and subjective (a sudden loss of self-control in response). The main appellate issue was whether provocation had an "air of reality," meaning sufficient evidence existed to put the defence before a jury.

The Court of Appeal upheld the trial judge's decision to exclude provocation, emphasizing that Copeland’s testimony showed deliberate action aimed at self-preservation, not a sudden, uncontrolled loss of temper. We highlighted the inherent tension between self-defence and provocation defences, noting practical takeaways for defence lawyers: provocation requires clear evidence of sudden anger and loss of control and cannot simply be a fallback strategy when self-defence is the primary narrative.

🎙️This time on the Full Court Press we listen to an AI generated convo created by Google's "Notebook LM."

It's not a dynamic, real-time interaction with an AI model but, rather, a (very realistic-sounding) "fake" conversation between two speakers generated after uploading the case into Notebook LM's large language model.

I say "fake" conversation but then again: How do we define "fake". If it sounds like a duck, walks like a duck...

Regardless, an interesting decision out of the SCC that we should be aware of and the corresponding judgment out of the ONCA. Jury charge case re. the admission and use of uncharged discreditable conduct.

Case Overview: R. v. Attard, 2024 ONCA 616

Court: Ontario Court of Appeal Date: August 16, 2024 Panel: Gillese, van Rensburg, and Roberts JJ.A.

Facts:

Wendel Attard was charged with dangerous operation of a motor vehicle causing bodily harm after a serious crash in Brampton, Ontario. At trial, the Crown sought to admit data from the vehicle's Event Data Recorder (EDR), which logged details such as speed, throttle, and braking in the five seconds before impact. The data showed Attard was speeding—up to 130 km/h in an 80 km/h zone.

Police had seized the car and extracted the EDR without a warrant or consent, relying on s. 489(2) of the Criminal Code.

Trial Decision:

The trial judge excluded the EDR evidence, finding:

• The police lacked reasonable grounds under s. 489(2) to seize the vehicle.
• Attard had a reasonable expectation of privacy in the EDR data, engaging s. 8 of the Charter.
• Under s. 24(2), the exclusion of the evidence was necessary to uphold the integrity of the justice system.

Attard was acquitted due to insufficient evidence of speed and acceleration without the EDR.

Court of Appeal Ruling:

The Court of Appeal allowed the Crown’s appeal, finding three key errors in the trial decision:

1. The seizure was lawful: Officer Ball had reasonable grounds under s. 489(2)(c) based on witness accounts, dashcam footage, and the scene’s severity.
2. No reasonable expectation of privacy in the EDR data once the vehicle was lawfully seized—echoing appellate decisions from B.C. (Fedan) and Saskatchewan (Major).
3. The exclusion under s. 24(2) was an error. Given the legal uncertainty around EDR privacy at the time and the reliability and importance of the evidence, the data should have been admitted.

Outcome:

The acquittal was set aside. A new trial was ordered, with the EDR evidence to be admitted.

The case is R. v. Pike, 2024 ONCA 608, decided by the Ontario Court of Appeal on August 9th, 2024.

The core issue was whether section 99(1)(a) of the Customs Act—which lets border officers search digital devices without any objective grounds—violates section 8 of the Charter, which protects against unreasonable search and seizure.

The Court held that the law is unconstitutional. They said searching digital devices—like phones and laptops—without at least reasonable suspicion is too intrusive to be justified by border security needs alone.

🎙️ New Episode of The Full Court Press — R. v. P.P. and the Problem with Assumptions

In this episode, we break down R. v. P.P., 2025 ONCA 243—a case that’s more than just a reversal of convictions. It's a real-world application of the Supreme Court’s decision in R. v. Kruk on when appellate courts can step in on credibility findings. We talk cultural assumptions, credibility missteps, and yes—a trial judge’s late-stage “Freudian slip” theory that went way offside. Plus, a nod to the father-son legal team who argued the case—and won.

🎧 Tune in for sharp legal analysis with just the right dose of procedural drama.

Fabrication and Guilt: R. v. Ahmadi, 2025 ONCA 219

🏀 The Full Court Press – Quick Hit

In this episode, Nate breaks down R. v. Ahmadi, a 2025 decision from the Ontario Court of Appeal, focusing on a key evidentiary issue: when an accused’s out-of-court statements can be used against them.

The Court draws a sharp line between disbelieving a statement and finding it was fabricated. Only fabricated statements—with independent evidence backing that up—can be used as circumstantial evidence of guilt.

We talk through how Ahmadi’s ever-changing police interview crossed that line, how the trial judge handled it, and why the ONCA upheld the conviction. A must-know case for anyone running—or challenging—post-offence statements.

Plus, a lawyer joke to send you off smiling.

In this episode, defense lawyer Nate Jackson and ChatGPT break down two fresh decisions from the Ontario Court of Appeal:

1. R. v. James (2025 ONCA 213) — A case about serious drug charges, police misconduct, and Charter breaches. The court excludes key evidence due to a reckless search and right-to-counsel violation, resulting in two acquittals. A clear message: rights matter, even in high-stakes drug prosecutions.
2. R. v. Arora (2025 ONCA 218) — A dramatic extortion and confinement case involving fake guns, duct tape, and a $1.75 million withdrawal. The court affirms a 7-year sentence, rejecting arguments about double-counting aggravating factors and discounting mitigating ones.