R. v. Hummel (D.), 2003 YKCA 4

• Judge: Finch, C.J.B.C., Donald and Low, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: February 25, 2003
• Jurisdiction: Yukon
• Citations: 2003 YKCA 4;(2003), 182 B.C.A.C. 93 (YukCA)

R. v. Hummel (D.) (2003), 182 B.C.A.C. 93 (YukCA);

    300 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. MY.036

Regina (respondent) v. Daniel Hummel (appellant)

(YU450; 2003 YKCA 4)

Indexed As: R. v. Hummel (D.)

Yukon Court of Appeal

Finch, C.J.B.C., Donald and Low, JJ.A.

May 2, 2003.

Summary:

The accused appealed from conviction by a judge and jury of first degree murder committed in the course of a sexual assault, a forcible confinement or both.

The Yukon Court of Appeal, in a decision reported in 171 B.C.A.C. 47; 280 W.A.C. 47, dismissed the appeal. The accused subsequently applied to re-open the appeal, to argue new grounds of appeal. The formal judgment order had not yet been entered.

The Yukon Court of Appeal dismissed the application.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - The Yukon Court of Appeal stated that if an appeal was heard on the merits and judgment entered, the court had no power to re-open the appeal - The source of the power to re-open was in the inherent jurisdiction of the court to control its processes and prevent an injustice - See paragraphs 10 and 14.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - The accused sought to re-open his appeal from conviction for first degree murder to argue new grounds of appeal (that the verdict was unreasonable) and to achieve a substitute verdict of second degree murder to make up for an error of counsel - A formal judgment order was not yet entered - The Yukon Court of Appeal held that the court's jurisdiction was not brought to a close, but dismissed the application - The Crown had a strong case - The new grounds were available and obvious, discussed with counsel and consciously not pursued at the first appeal, as an exercise of good judg­ment.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - The Yukon Court of Appeal discussed the relevant factors to consider on an application to re-open an appeal - See paragraphs 17 to 24.

Cases Noticed:

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 115 C.C.C.(3d) 89 (C.A.), refd to. [para. 10].

R. v. E.F.H.; R. v. Rhingo - see R. v. Hamilton (E.).

R. v. Garcha (J.J.) (2000), 143 B.C.A.C. 245; 235 W.A.C. 245 (C.A.), refd to. [para. 10].

R. v. R.F. (2000), 138 B.C.A.C. 11; 226 W.A.C. 111 (C.A.), refd to. [para. 12].

R. v. Blaker (1983), 6 C.C.C.(3d) 385 (B.C.C.A.), refd to. [para. 14].

Menzies v. Harlos (1989), 37 B.C.L.R.(2d) 249 (C.A.), refd to. [para. 20].

R. v. Radok, [1992] B.C.J. No. 1023 (C.A.), refd to. [para. 21].

Mayer v. Mayer, [1993] B.C.J. No. 1818 (C.A.), refd to. [para. 22].

Counsel:

K.M. Eldred, for the appellant;

E.J. Horembala, Q.C., and W.B. Smart, Q.C., for the respondent.

This application was heard before Finch, C.J.B.C., Donald and Low, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on February 25, 2003. The decision of the court was delivered on May 2, 2003, by Donald, J.A.