R. v. MacMullin (A.D.) et al., (2015) 599 A.R. 178

JudgeBerger, J.A.
CourtCourt of Appeal (Alberta)
Case DateFebruary 19, 2015
Citations(2015), 599 A.R. 178;2015 ABCA 82

R. v. MacMullin (A.D.) (2015), 599 A.R. 178; 643 W.A.C. 178 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.014

Her Majesty the Queen (respondent) v. Allan Dawson MacMullin (applicant)

(1403-0271-A; 2015 ABCA 82)

Indexed As: R. v. MacMullin (A.D.) et al.

Alberta Court of Appeal

Berger, J.A.

February 25, 2015.

Summary:

The accused (Elander and MacMullin) were jointly charged with 22 counts of fraud. MacMullin was also individually charged with another 19 counts of fraud. The charges related to fraudulent mortgage schemes from 2000 to 2004 that used straw buyers, fraudulent and false documents, and inflated property values to induce financial institutions to advance mortgage funds that they would not otherwise have advanced. MacMullin was the alleged ringleader. At issue on a voir dire was the admissibility of 90,000 pages of various files and documents representing the paper trail of the alleged fraudulent scheme. The accused challenged the admissibility of the documents on the basis that they constituted hearsay. The accused also alleged a breach of Elander's s. 8 Charter right to be secure from unreasonable search and seizure.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 579 A.R. 205, held that, with only minor limitations, the evidence was admissible. The court held that Elander's s. 8 Charter rights were not infringed and that, alternatively, had there been a breach of Elander's privacy rights, the documents in question would not have been excluded under s. 24(2) of the Charter. Elander brought a non-suit motion on 19 of the 22 counts, alleging that he merely performed routine functions in all of the mortgage transactions, without knowledge of, or recklessness to, the fraudulent scheme.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 579 A.R. 271, dismissed the application. There was some circumstantial evidence of knowledge or wilful blindness upon which a properly instructed trier of fact, acting reasonably and judicially, could find that the Crown had proven every element of the offence for each of the 19 counts.

The Alberta Court of Queen's Bench, in a judgment reported (2014), 594 A.R. 1, found MacMullin guilty of 38 counts of fraud and Elander guilty of 14 counts of fraud. MacMullin appealed and applied for judicial interim release pending the appeal.

The Alberta Court of Appeal, per Slatter, J.A., in a judgment reported (2014), 584 A.R. 360; 623 W.A.C. 360, adjourned the application sine die. The accused re-applied for interim judicial release.

The Alberta Court of Appeal, per Berger, J.A., dismissed the application.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - The accused was found guilty of 38 counts of fraud respecting fraudulent mortgage schemes from 2000 to 2004 that used straw buyers, fraudulent and false documents, and inflated property values to induce financial institutions to advance mortgage funds that they would not otherwise have advanced - MacMullin appealed and applied for judicial interim release pending the appeal - The Alberta Court of Appeal, per Slatter, J.A., adjourned the application sine die - The stated grounds of appeal merely named a ground of appeal conceptually known to law, without showing an air of reality - The grounds of appeal were at most "speculative" - Further, it was an express or implied term of any interim release application that the accused prosecute the appeal with diligence - Legal Aid had yet to agree to provide counsel for the appeal and the accused had yet to retain counsel - Until further assurances were given that the appeal would be prosecuted diligently, the application was premature - If the accused rectified the deficiencies in his application, he could re-apply - The accused reapplied for interim release - The Alberta Court of Appeal, per Berger, J.A., dismissed the application - Respecting the stated grounds of appeal, the accused failed to show that the grounds of appeal met the low threshold of not being frivolous.

Cases Noticed:

R. v. Passey (D.M.) (1997), 209 A.R. 191; 160 W.A.C. 191; 121 C.C.C.(3d) 444; 1997 ABCA 343, refd to. [para. 3].

R. v. Genge, [1992] N.J. No. 238 (C.A.), refd to. [para. 4].

Counsel:

J.R. Russell, for the respondent;

A.S. Millman, for the applicant.

This application was heard on February 19, 2015, before Berger, J.A., of the Alberta Court of Appeal, who delivered the following judgment on February 25, 2015.

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3 practice notes
  • R. v. Govenlock (G.W.), 2015 ABCA 122
    • Canada
    • Court of Appeal (Alberta)
    • 24 Marzo 2015
    ...R. v. McNaughton (S.D.) (2010), 487 A.R. 130; 495 W.A.C. 130 (C.A.), refd to. [para. 31, footnote 18]. R. v. MacMullin (A.D.) et al. (2015), 599 A.R. 178; 643 W.A.C. 178; 2015 ABCA 82, refd to. [para. 31, footnote 19]. United States of America v. Fatico (1978), 458 F. Supp. 388 (E.D.N.Y.), ......
  • R. v. Vader (T.E.), [2016] A.R. TBEd. JN.032
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Mayo 2016
    ...approach to the reliability of documentary evidence described by Germain J in R v MacMullin , 2013 ABQB 741, 579 AR 205, confirmed in 2015 ABCA 82. There is no real dispute between the parties that the Telus text message record data is accurate and reliable because of the automated manner i......
  • R. v. Vader (T.E.), 2016 ABQB 287
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Mayo 2016
    ...approach to the reliability of documentary evidence described by Germain J in R v MacMullin , 2013 ABQB 741, 579 AR 205, confirmed in 2015 ABCA 82. There is no real dispute between the parties that the Telus text message record data is accurate and reliable because of the automated manner i......
3 cases
  • R. v. Govenlock (G.W.), 2015 ABCA 122
    • Canada
    • Court of Appeal (Alberta)
    • 24 Marzo 2015
    ...R. v. McNaughton (S.D.) (2010), 487 A.R. 130; 495 W.A.C. 130 (C.A.), refd to. [para. 31, footnote 18]. R. v. MacMullin (A.D.) et al. (2015), 599 A.R. 178; 643 W.A.C. 178; 2015 ABCA 82, refd to. [para. 31, footnote 19]. United States of America v. Fatico (1978), 458 F. Supp. 388 (E.D.N.Y.), ......
  • R. v. Vader (T.E.), [2016] A.R. TBEd. JN.032
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Mayo 2016
    ...approach to the reliability of documentary evidence described by Germain J in R v MacMullin , 2013 ABQB 741, 579 AR 205, confirmed in 2015 ABCA 82. There is no real dispute between the parties that the Telus text message record data is accurate and reliable because of the automated manner i......
  • R. v. Vader (T.E.), 2016 ABQB 287
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Mayo 2016
    ...approach to the reliability of documentary evidence described by Germain J in R v MacMullin , 2013 ABQB 741, 579 AR 205, confirmed in 2015 ABCA 82. There is no real dispute between the parties that the Telus text message record data is accurate and reliable because of the automated manner i......

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