R. v. Hailemolokot (B.W.) et al.,

• Jurisdiction: Manitoba
• Judge: Beard, Burnett and Mainella, JJ.A.
• Neutral Citation: 2014 MBCA 90
• Citation: (2014), 310 Man.R.(2d) 120 (CA),2014 MBCA 90,310 ManR(2d) 120,(2014), 310 ManR(2d) 120 (CA),310 Man.R.(2d) 120
• Date: 23 September 2014
• Court: Court of Appeal (Manitoba)

R. v. Hailemolokot (B.W.) (2014), 310 Man.R.(2d) 120 (CA);

      618 W.A.C. 120

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. OC.001

Her Majesty The Queen (respondent) v. Biniam Worede Hailemolokot (accused/appellant)

(AR 13-30-08100; 2014 MBCA 90)

Indexed As: R. v. Hailemolokot (B.W.) et al.

Manitoba Court of Appeal

Beard, Burnett and Mainella, JJ.A.

September 29, 2014.

Summary:

The accused was convicted of carrying a concealed weapon and two counts of robbery with a firearm. Prior to sentencing, the accused brought a motion to re-open the trial to tender evidence to show that the court did not have jurisdiction because he was actually under the age of 18 at the time of the offences.

The Manitoba Court of Queen's Bench, in a decision reported at 297 Man.R.(2d) 279, dismissed the motion. The accused appealed.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening trial to hear additional evidence - The accused sought to re-open a trial after conviction, but before sentencing, to introduce evidence respecting his age (i.e., that he was under 18 at the time of the offences) - The evidence consisted of documents purporting to be Sudanese birth and baptismal certificates and Citizenship and Immigration Canada documents - The trial judge dismissed the motion - Evidence of authentication and context was lacking - The accused did not present evidence that was reasonably capable of belief - Furthermore, the motion appeared to be an attempt to reverse a tactical decision made at trial not to defend this case on the age issue because of immigration concerns - The stringent test for re-opening following conviction had not been met - The discretion to re-open had to be exercised sparingly only in the clearest of cases, and this was not such a case - The accused appealed - The Manitoba Court of Appeal dismissed the appeal.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 4].

R. v. Kowall (M.J.) (1996), 92 O.A.C. 82; 108 C.C.C.(3d) 481 (C.A.), refd to. [para. 7].

R. v. Arabia (J.) (2008), 240 O.A.C. 104; 2008 ONCA 565, refd to. [para. 8].

R. v. Kippax (A.) (2011), 286 O.A.C. 144; 2011 ONCA 766, leave to appeal refused (2012), 439 N.R. 398 (S.C.C.), refd to. [para. 9].

R. v. Clarke (B.) (2010), 285 N.S.R.(2d) 372; 905 A.P.R. 372; 2010 NSCA 1, refd to. [para. 10].

Counsel:

M.P. Cook, for the appellant;

R.N. Malaviya, for the respondent.

This appeal was heard on September 23, 2014, before Beard, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court, by Burnett, J.A., on September 29, 2014.