R. v. MacPhee (N.), (2014) 352 N.S.R.(2d) 290 (PC)

• Judge: Ross, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: September 16, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 352 N.S.R.(2d) 290 (PC);2014 NSPC 89

R. v. MacPhee (N.) (2014), 352 N.S.R.(2d) 290 (PC);

    1112 A.P.R. 290

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. NO.007

The Queen v. Nelson MacPhee

(2740333; 2014 NSPC 89)

Indexed As: R. v. MacPhee (N.)

Nova Scotia Provincial Court

Ross, P.C.J.

November 5, 2014.

Summary:

In December 2005, the accused shot two victims. The first victim died. The second victim was badly wounded. The accused pleaded guilty to manslaughter and aggravated assault. He was sentenced to 17.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for aggravated assault. In December 2012, the second victim died. Following an autopsy, the medical examiner opined that his death was directly attributable to internal injuries caused by the gunshot wound seven years earlier. The accused was charged with manslaughter. The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that the manslaughter charge constituted an abuse of process.

The Nova Scotia Provincial Court granted a stay of proceedings. To now prosecute the accused for manslaughter would constitute an abuse of process.

Civil Rights - Topic 1410.5

Security of the person - Law enforcement - Prosecutorial discretion (incl. private prosecutions) - In December 2005, the accused shot two victims - The first victim died - The second victim was badly wounded - The accused pleaded guilty to manslaughter and aggravated assault - He was sentenced to 17.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for aggravated assault - In December 2012, the second victim died - Following an autopsy, the medical examiner opined that his death was directly attributable to internal injuries caused by the gunshot wound seven years earlier - The accused was charged with manslaughter - Prior to the repeal of s. 227 of the Criminal Code in 1999, no person could be found guilty of homicide unless the death occurred within one year and one day - There was now no time limit - The Nova Scotia Provincial Court allowed the accused's application under s. 24(1) of the Charter for a stay of proceedings for abuse of process in the Crown's exercise of its prosecutorial discretion - The fact that the victim's death was foreseeable at the time of the first conviction and sentence rendered the present prosecution unfair and prejudicial to the accused - The court stated that "If this matter proceeds, it will set a precedent. It seems inevitable that pressure will mount in other such cases to seek redress yet again when the natural consequences of the original offences become manifest. ... To seek now to 'perfect' that sentence, even in a well-meaning attempt to hold an accused accountable to the victim or his/her family, presents a risk to the integrity of the justice system." - See paragraphs 31 to 75.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In December 2005, the accused shot two victims - The first victim died - The second victim was badly wounded - The accused pleaded guilty to manslaughter and aggravated assault - He was sentenced to 17.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for aggravated assault - In December 2012, the second victim died - Following an autopsy, the medical examiner opined that his death was directly attributable to internal injuries caused by the gunshot wound seven years earlier - The accused was charged with manslaughter - On an application for a stay of proceedings for abuse of process, the accused also argued that the failure of the police and medical examiner to preserve the victim's liver breached the Crown's duty to disclose and prejudiced the accused's right to make full answer and defence, as he intended to challenge causation - The Nova Scotia Provincial Court rejected the argument - The Crown disclosed the autopsy report, photographs of the autopsy, and tissue slides - There were 11 volumes of medical reports outlining the victim's entire medical history from the shooting until his death - The medical examiner was available for cross-examination - The accused could retain his own expert to advise counsel on possible shortcomings in the autopsy report - There was no medical evidence of prejudice to the accused's right to make full answer and defence - See paragraphs 19 to 23.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 1410.5 ].

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - In December 2005, the accused shot two victims - The first victim died - The second victim was badly wounded - The accused pleaded guilty to manslaughter and aggravated assault - He was sentenced to 17.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for aggravated assault - In December 2012, the second victim died - Following an autopsy, the medical examiner opined that his death was directly attributable to internal injuries caused by the gunshot wound seven years earlier - The accused was charged with manslaughter - Section 610 of the Criminal Code provided that a subsequent indictment was barred if it charged "substantially the same offence as that charged in a previous indictment on which an accused was previously convicted" - The Nova Scotia Provincial Court held that s. 610 did not bar the manslaughter charge, as aggravated assault and manslaughter were not "substantially the same offence" - The victim's subsequent death was not simply an aggravating circumstance - It changed the very nature of the offence - See paragraphs 24 to 27.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See Civil Rights - Topic 1410.5 ].

Criminal Law - Topic 78

Res judicata (multiple convictions for same subject matter precluded) - Where the offences are of different degrees of gravity - [See Civil Rights - Topic 8404 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See Civil Rights - Topic 1410.5 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 19].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 20].

R. v. Hall (C.A.) (1999), 242 A.R. 85; 134 C.C.C.(3d) 256 (Q.B.), refd to. [para. 25].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 37].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 37].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 37].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 37].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 37].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 37].

R. v. Anderson (F.) (2014), 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289, refd to. [para. 37].

R. v. Babos (A.) (2014), 454 N.R. 86 (S.C.C.), refd to. [para. 37].

R. v. Bellusci (R.), [2012] 2 S.C.R. 509; 433 N.R. 135, refd to. [para. 48].

R. v. Mabior (C.L.), [2012] 2 S.C.R. 584; 434 N.R. 431, refd to. [para. 59].

R. v. Kaotalok (B.), [2013] Northwest Terr. Cases Uned. 36 (S.C.), refd to. [para. 60].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 60].

R. v. Walkem (V.), [2007] O.T.C. Uned. S74 (Sup. Ct.), refd to. [para. 61].

R. v. Nduwayo (A.S.), [2006] B.C.T.C. Uned. C09 (S.C.), refd to. [para. 62].

R. v. Nyoni (B.N.), [2014] B.C.T.C. Uned. 1074 (S.C.), refd to. [para. 63].

R. v. Smith (M.) (2012), 315 N.S.R.(2d) 257; 998 A.P.R. 257 (C.A.), refd to. [para. 64].

R. v. M.G.J., [2012] B.C.T.C. Uned. 1366 (S.C.), refd to. [para. 65].

Counsel:

Nash T. Brogan and T.J. McKeough, for the accused;

Kathryn E. Pentz, Q.C., for the Public Prosecution Service.

This application was heard on September 16, 2014, at Sydney, N.S., before Ross, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on November 5, 2014.