R. v. A.O.D., 2015 BCCA 514

• Judge: Groberman, MacKenzie and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 16, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 514;(2015), 381 B.C.A.C. 83 (CA)

R. v. A.O.D. (2015), 381 B.C.A.C. 83 (CA);

    659 W.A.C. 83

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JA.012

Regina (respondent) v. A.O.D. (appellant)

(CA41925; 2015 BCCA 514)

Indexed As: R. v. A.O.D.

British Columbia Court of Appeal

Groberman, MacKenzie and Goepel, JJ.A.

December 16, 2015.

Summary:

The accused was convicted of two offences as an adult on the basis of his stated age of 18 years and 10 months as of the date of the offences. Following sentencing, the accused, a non-citizen, faced a removal order and deportation to his native Sudan. The accused now claimed that he was actually born one year earlier, meaning that he was under 18 at the time of the offences and that the Youth Court, not the Provincial Court in which he was convicted, had exclusive jurisdiction. The accused applied to adduce fresh evidence on appeal to prove his true age and for an extension of time to appeal his conviction.

The British Columbia Court of Appeal dismissed the applications. The fresh evidence was not admissible, because it failed to meet the R. v. Palmer (SCC) requirements of due diligence and reliability. The accused consistently maintained throughout these proceedings, and in earlier unrelated dealings with the court, that he was born in 1983, which made him 18 years of age at the time of the offence. Apart from due diligence, the accused's present position that he was actually born in 1984, and thus under age 18 at the time of the offences, was not reasonably capable of belief.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - General - See paragraphs 26 to 63.

Criminal Law - Topic 8706

Young offenders - General principles - Jurisdiction - Courts - Age of young offender - See paragraphs 26 to 63.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - See paragraphs 26 to 63.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - See paragraphs 26 to 63.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 15].

R. v. Poonia (H.S.), [2014] B.C.T.C. Uned. 1526; 2014 BCSC 1526, dist. [para. 16].

R. v. Widdifield - see R. v. W.W. and V.W.

R. v. W.W. and L.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), dist. [para. 16].

R. v. Pilkington, [1969] 3 C.C.C. 327 (B.C.C.A.), refd to. [para. 17].

R. v. Hailemolokot (B.W.) (2014), 310 Man.R.(2d) 120; 618 W.A.C. 120; 2014 MBCA 90, refd to. [para. 20].

R. v. Hay (L.) et al. (2013), 451 N.R. 34; 312 O.A.C. 201; 2013 SCC 61, refd to. [para. 48].

R. v. Hartman (R.) (2015), 336 O.A.C. 329; 2015 ONCA 498, refd to. [para. 55].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 2007 ONCA 196, refd to. [para. 56].

R. v. E.A.A. (1987), 22 O.A.C. 83 (C.A.), dist. [para. 57].

R. v. M.A.G. (2002), 170 B.C.A.C. 305; 279 W.A.C. 305; 2002 BCCA 413, refd to. [para. 61].

Counsel:

J.D. Jevning, for the appellant;

J.W. Caldwell, for the (Crown) respondent.

These applications were heard on November 10, 2015, at Vancouver, B.C., before Groberman, MacKenzie and Goepel, JJ.A., of the British Columbia Court of Appeal.

On December 16, 2015, MacKenzie, J.A., delivered the following judgment for the Court of Appeal.