R. v. Allooloo (C.R.), (2010) 487 A.R. 322 (CA)

JudgeHunt, O'Brien and Slatter, JJ.A.
CourtCourt of Appeal (Northwest Territories)
Case DateJune 15, 2010
JurisdictionNorthwest Territories
Citations(2010), 487 A.R. 322 (CA)

R. v. Allooloo (C.R.) (2010), 487 A.R. 322 (CA);

      495 W.A.C. 322

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.158

Her Majesty the Queen (respondent) v. Colin Roy Allooloo (appellant)

(A-1-AP2009000013; 2010 NWTCA 7)

Indexed As: R. v. Allooloo (C.R.)

Northwest Territories Court of Appeal

Hunt, O'Brien and Slatter, JJ.A.

July 2, 2010.

Summary:

The accused R.C.M.P. officer was convicted of assault with a weapon after he sprayed pepper spray under a cell door at the complainant, who was a prisoner. The trial judge imposed a conditional sentence, including house arrest, of 30 days, ordered the accused to provide a DNA sample and imposed the mandatory firearms prohibition. The trial judge declined to grant an exemption under ss. 113(1)(a) (to hunt or trap for sustenance) or 113(1)(b) (where the order would result in a virtual prohibition against employment) of the Criminal Code to the firearms prohibition. The accused appealed from the conviction and from the sentence.

The Northwest Territories Court of Appeal dismissed the appeal from conviction. The court allowed the accused's appeal from his sentence in part, finding that the evidence on the record respecting the accused's hunting for sustenance activities was uncontradicted and met the requirements of s. 113(1)(a). The court directed that an authorization, licence or registration certificate, as the case may be, was to be issued to the accused for sustenance purposes.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - The accused R.C.M.P. officer was convicted of assault with a weapon after he sprayed pepper spray under a cell door at the complainant, who was a prisoner - The Northwest Territories Court of Appeal dismissed the accused's appeal from his conviction - The court rejected the accused's argument that the trial judge should not have limited the cross-examination of the complainant on other criminal acts - A trial judge could limit unnecessary cross-examination, any limits imposed here were minor, and, in any event, further cross-examination on the complainant's character would not have affected the outcome - See paragraph 6.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The accused R.C.M.P. officer was convicted of assault with a weapon after he sprayed pepper spray under a cell door at the complainant, who was a prisoner - The key Crown witness was Janke, another constable who was on duty at the time of the incident - The accused was Janke's acting superior officer - Janke testified, inter alia, that his initial reports of the incident were not believed and that he was subsequently investigated himself for providing false information - The Northwest Territories Court of Appeal dismissed the accused's appeal from his conviction - The court rejected the argument that the trial judge should not have allowed Janke to testify as to the effect that the events had on him, both personally and professionally - The testimony was relevant to Janke's overall credibility, which was a key issue - The disputed evidence, while of marginal relevance, was not lengthy - If it was oath helping, it was borderline, and it was properly admitted - See paragraph 7.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross- examination of witnesses - [See Criminal Law - Topic 137 ].

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - The accused R.C.M.P. officer was convicted of assault with a weapon after he sprayed pepper spray under a cell door at the complainant, who was a prisoner - The Northwest Territories Court of Appeal dismissed the accused's appeal from his conviction - The court rejected the accused's argument that the trial judge had erred in his use of evidence of "post offence conduct" - The "conduct" consisted of statements made by the accused: a statement that the event had been "looked after", an imprecise apology to his superior officer, a statement that the other constable on duty was not involved in the incident and an apology to the complainant - The trial judge found that these statements, while not conclusive, were consistent with guilt, a finding which disclosed no reviewable error - See paragraph 8.

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - [See Criminal Law - Topic 5799 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Criminal Law - Topic 137 ].

Criminal Law - Topic 5419.1

Evidence and witnesses - Witnesses - Character evidence respecting - [See Criminal Law - Topic 137 ].

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - The accused R.C.M.P. officer was convicted of assault with a weapon after he sprayed pepper spray under a cell door at the complainant, who was a prisoner - The trial judge rejected the accused's request for a conditional discharge and imposed a conditional sentence, including house arrest, of 30 days, ordered the accused to provide a DNA sample and imposed the mandatory firearms prohibition - The trial judge declined to grant an exemption under ss. 113(1)(a) (to hunt or trap for sustenance) or 113(1)(b) (where the order would result in a virtual prohibition against employment) of the Criminal Code to the firearms prohibition - The Northwest Territories Court of Appeal allowed the accused's appeal from his sentence in part - The 30 day conditional sentence was not unfit - Given the aggravating factor that the complainant was a prisoner under the accused's control, the sentence was within the acceptable range - However, the evidence on the record respecting the accused's hunting for sustenance activities was uncontradicted and met the requirements of s. 113(1)(a) - The court directed that an authorization, licence or registration certificate, as the case may be, was to be issued to the accused for sustenance purposes - The evidence did not establish that policing was "virtually the only" occupation open to the accused - The accused's preference to remain a police officer did not satisfy the requirement of s. 113(1)(b) for an exemption - See paragraphs 10 to 18.

Criminal Law - Topic 5849.1

Sentencing - Considerations on imposing sentence - Position of public trust of accused - [See Criminal Law - Topic 5799 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5799 ].

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - [See Criminal Law - Topic 4300 ].

Cases Noticed:

R. v. S.G.T. (2010), 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 5].

Counsel:

M.D. Gates, Q.C., for the respondent;

K.B. Molle, for the appellant.

This appeal was heard on June 15, 2010, by Hunt, O'Brien and Slatter, JJ.A., of the Northwest Territories Court of Appeal. On July 2, 2010, the court delivered the following memorandum of judgment.

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5 practice notes
  • R. v. Allooloo (C.R.), (2011) 417 N.R. 392 (Motion)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 20, 2011
    ...case of Colin Roy Allooloo v. Her Majesty the Queen , a case from the Northwest Territories Court of Appeal dated July 2, 2010. See (2010), 487 A.R. 322; 495 W.A.C. 322. See Bulletin of Proceedings taken in the Supreme Court of Canada , January 21, 2011. Motion dismissed. [End of document] ......
  • R. v. Simon (H.), (2012) 328 Nfld. & P.E.I.R. 174 (NLPC)
    • Canada
    • Newfoundland and Labrador Newfoundland and Labrador Provincial Court (Canada)
    • September 10, 2012
    ...2010 BCSC 1092, refd to. [para. 15]. R. v. Jararuse, 2001 CarswellNfld 339 (Prov. Ct.), refd to. [para. 16]. R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322 (C.A.), leave to appeal denied (2011), 417 N.R. 392; 510 A.R. 410; 527 W.A.C. 401 (S.C.C.), refd to. [para. Statutes Notice......
  • R. v. Cruickshank (K.A.), 2013 NSPC 120
    • Canada
    • Nova Scotia Provincial Court of Nova Scotia (Canada)
    • November 26, 2013
    ...126; 2004 NSCA 3, refd to. [para. 13]. R. v. Jararuse, [2001] N.J. No. 431 (Prov. Ct.), refd to. [para. 14]. R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322; 2010 NWTCA 7, refd to. [para. R. v. Tessier (M.), [2006] O.A.C. Uned. 176 (C.A.), refd to. [para. 20]. R. v. Conley (H.R.)......
  • R. v. Pouce Coupe (A.J.), 2014 BCCA 255
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • May 29, 2014
    ...Herman, [1994] B.C.J. No. 2770 (C.A.), refd to. [para. 34]. R. v. Christensen, 2004 NUCA 4, refd to. [para. 46]. R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322; 2010 NWTCA 7, refd to. [para. R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 2000 SCC 47, refd to. [para. 47]......
  • Request a trial to view additional results
5 cases
  • R. v. Allooloo (C.R.), (2011) 417 N.R. 392 (Motion)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 20, 2011
    ...case of Colin Roy Allooloo v. Her Majesty the Queen , a case from the Northwest Territories Court of Appeal dated July 2, 2010. See (2010), 487 A.R. 322; 495 W.A.C. 322. See Bulletin of Proceedings taken in the Supreme Court of Canada , January 21, 2011. Motion dismissed. [End of document] ......
  • R. v. Pouce Coupe (A.J.), 2014 BCCA 255
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • May 29, 2014
    ...Herman, [1994] B.C.J. No. 2770 (C.A.), refd to. [para. 34]. R. v. Christensen, 2004 NUCA 4, refd to. [para. 46]. R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322; 2010 NWTCA 7, refd to. [para. R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 2000 SCC 47, refd to. [para. 47]......
  • R. v. Simon (H.), (2012) 328 Nfld. & P.E.I.R. 174 (NLPC)
    • Canada
    • Newfoundland and Labrador Newfoundland and Labrador Provincial Court (Canada)
    • September 10, 2012
    ...2010 BCSC 1092, refd to. [para. 15]. R. v. Jararuse, 2001 CarswellNfld 339 (Prov. Ct.), refd to. [para. 16]. R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322 (C.A.), leave to appeal denied (2011), 417 N.R. 392; 510 A.R. 410; 527 W.A.C. 401 (S.C.C.), refd to. [para. Statutes Notice......
  • R. v. Cruickshank (K.A.), 2013 NSPC 120
    • Canada
    • Nova Scotia Provincial Court of Nova Scotia (Canada)
    • November 26, 2013
    ...126; 2004 NSCA 3, refd to. [para. 13]. R. v. Jararuse, [2001] N.J. No. 431 (Prov. Ct.), refd to. [para. 14]. R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322; 2010 NWTCA 7, refd to. [para. R. v. Tessier (M.), [2006] O.A.C. Uned. 176 (C.A.), refd to. [para. 20]. R. v. Conley (H.R.)......
  • Request a trial to view additional results

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