Credit to the team at Supreme Advocacy
Leaves Dismissed
Criminal Law: Delay
Ouellette v. R., 2022 ABCA 301 (40595)
Mr. Ouellette and a co-accused were charged with offences arising from the fatal shootings of two people in a parking lot. The trial judge dismissed a motion to stay proceedings for breach of the right to be tried within a reasonable time by s. 11(b). Mr. Ouellette was convicted of first degree murder and second degree murder. The Alta C.A. dismissed an appeal from the convictions. The Alta. C.A. dismissed an application to re-open the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Criminal Law: Second Degree Murder
Aristor v. R., 2022 ONCA 719 (40628)
Mr. Aristor and a friend were punched, kicked and knocked to the ground by a group of assailants outside a nightclub. Bystanders intervened and the assailants walked away. Mr. Aristor got up and ran towards the group of assailants holding a knife. One of the assailants received a fatal stab wound. A jury convicted Mr. Aristor of second degree murder. The Ont. C.A. dismissed an appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Criminal Law: Bail; Wrongful Conviction Review
Purdy v. R., 2012 BCCA 272 (40543)
The Applicant Kelvin Purdy was convicted of second degree murder, and sentenced to life imprisonment with no parole eligibility for 19 years. The B.C.C.A. dismissed Mr. Purdy’s appeal from his conviction in 2008, and his appeal from his sentence in 2012. It also dismissed his application to re-open his conviction appeal in 2010; Mr. Purdy then filed an application for leave to appeal that decision before the S.C.C., which was dismissed in 2012. Mr. Purdy then applied to the federal Minister of Justice for a review of his case, alleging a miscarriage of justice; his application for a wrongful conviction ministerial review was accepted in September 2018. In 2019, the B.C.S.C. dismissed Mr. Purdy’s application for bail pending a determination of the ministerial review process. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The various requests for miscellaneous relief are dismissed. The application for leave to appeal…is dismissed.”
Criminal Law: Sexual Offences
S. v. R., 2023 ABCA 10 (40643)
There is a publication ban in this case, in the context of convictions for sexual offences. “The application for leave to appeal…is dismissed.”
Criminal Law: Spontaneous Utterance Exception
MacKinnon v. R, 2022 ONCA 811 (40581)
Five unarmed men, including Mr. Taylor, were shot on a downtown Toronto street. Officer Quinn arrived at the scene and was the first officer to tend to Mr. Taylor, who gave a description of the shooter. Mr. Taylor was transported to the hospital and died. The central issue at trial was the identity of the shooters. The Crown took the position Mr. Taylor’s statement to Officer Quinn was admissible under the spontaneous utterance exception. The trial judge admitted the statement under the spontaneous utterance exception, and instructed the jury accordingly. After a trial by judge and jury, the Applicant was convicted of second-degree murder and aggravated assault. The Applicant’s conviction appeal was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Criminal Law: Admissibility of Victim Statements
Weldekidan v. R., 2022 MBCA 102 (40613)
There were multiple shootings at a house party in Winnipeg. A voir dire was held regarding the admissibility of the videotaped statements of the victims. Threshold reliability was established. The ultimate reliability of the videotaped statements was confirmed by the trial judge. The trial judge admitted the videotaped statements. The Applicant was convicted of four counts of attempted murder as well as numerous firearm offences. The Man. C.A. held the trial judge properly assessed the ultimate reliability of each statement, and dismissed the appeal. “The application for leave to appeal … is dismissed.”
Criminal Law: First Degree Murder
C.M. v. R., 2018 ABCA 214 (36987)
There is a publication ban on the party, in the context of an individual convicted of first degree murder, sentenced as an adult. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal … would have been dismissed.”
Criminal Law: First Degree Murder
Imona-Russell v. R., 2018 ONCA 590 (40578)
Mr. Imona-Russell had sexual contact with a woman and stabbed her fatally with a pair of scissors. He was charged with murder. Mr. Imona-Russell was HIV positive and did not use a condom. The Crown submitted to the jury at trial Mr. Imona-Russell used threats or violence to overcome resistance to sexual contact and then killed his victim as part of the same single transaction, therefore the murder is first degree. Mr. Imona-Russell testified they had consensual sexual intercourse after which the victim criticized his performance which caused him to stab her in an angry frenzy. The Crown submitted to the jury if things happened as Mr. Imona-Russell testified, the murder would be first degree because Mr. Imona-Russell did not disclose to his victim he was HIV positive and any consent was vitiated by fraud. The jury convicted Mr. Imona-Russell of first degree murder. The Ont. C.A. dismissed an appeal. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal … would have been dismissed.”
Criminal Law: Fraud
Landry v. R., 2022 QCCA 1186 (40394)
The Applicant, a police officer, was temporarily off work because of medical issues. During a meeting with a physician-arbitrator, who was to determine whether his disability was permanent, the Applican misrepresented his work activities with his former spouse’s travel agencies. The physician-arbitrator found his disability was permanent, and the Applicant entitled to permanent disability benefits. The employer knew of the Applicant’s work activities but did not tell the physician-arbitrator about them. The trial judge found all the elements of the offence of fraud over $5K had been established. The Applicant was convicted of one count of fraud. The majority of the Qué. C.A. upheld the trial judge’s decision, while the minority would have substituted a verdict of attempted fraud. “The motion by His Majesty the King for an extension of time to serve and file a response to the motion to adduce new evidence is granted. The motion by Nicolas Landry to adduce new evidence is dismissed. The application for leave to appeal … is dismissed.”
Criminal Law: Manslaughter
C.G.M. v. R., 2018 ABCA 341 (39970)
There is a publication ban on the party, in the context of an individual convicted of manslaughter, sentenced as an adult. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal … would have been dismissed.”
Criminal Law: NCR
Agbakoba v. British Columbia (Adult Forensic Psychiatric Services), 2022 BCCA 394 (40481)
The Applicant came to Canada from Nigeria in April 2014 on a student visa. By late 2016, his school performance had declined and he was no longer enrolled in college contrary to the requirements of his visa. In January 2017, he assaulted a neighbour using a weapon inflicting severe injuries, including multiple stab wounds. He was arrested and charged with an offence. A Canada Border Services Agency officer reported the Applicant as inadmissible to Canada because of non-compliance with the terms of his visa and in February 2017, a removal order was issued against him under the Immigration and Refugee Protection Act. The Applicant did not seek to have the removal order judicially reviewed. In January 2018, the Applicant was found not criminally responsible for aggravated assault on account of a mental disorder. In February 2018, the British Columbia Review Board released him from the Forensic Psychiatric Hospital (“FPH”) on a conditional discharge which included a term he not be detained or removed from British Columbia. In March 2018, the Applicant returned to custody at the FPH following an altercation with a roommate and threatening conduct towards others. The following month, the Review Board ordered the Applicant remain in custody for 12 months. His custodial disposition was extended to February 2021 and in the meantime he was denied status as a convention refugee and a permanent resident. The Applicant applied for J.R. of the denial of permanent resident status which was dismissed by the Fed. Court in April 2021. In April 2022, the Review Board ordered the Applicant be conditionally discharged. The Review Board declined to include as part of the conditional discharge a term the Applicant not be detained or removed from British Columbia without prior notice to the Review Board and a hearing. The Applicant’s appeal to the B.C.C.A. was dismissed. “The application for leave to appeal … is dismissed.”