R. v. Magomadova (A.),

• Judge: Bielby,Jeffrey,O'Ferall,O'Ferrall
• Neutral Citation: 2015 ABCA 26
• Date: 09 October 2014
• Court: Court of Appeal (Alberta)

R. v. Magomadova (A.) (2015), 588 A.R. 331; 626 W.A.C. 331 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.173

Her Majesty the Queen (appellant) v. Aset Magomadova (respondent)

(1301-0319-A; 2015 ABCA 26)

Indexed As: R. v. Magomadova (A.)

Alberta Court of Appeal

Bielby and O'Ferrall, JJ.A., and Jeffrey, J.(ad hoc)

January 22, 2015.

Summary:

The accused was charged with second degree murder in the death of her 14 year old daughter. A trial judge found the accused not guilty of second degree murder, but guilty of the included offence of manslaughter. The Crown appealed.

The Alberta Court of Appeal, in a decision reported at [2011] A.R. Uned. 111, allowed the appeal and ordered a new trial. The accused applied for and obtained a stay of proceedings on the grounds that health issues arising from her cancer diagnosis precluded her from making full answer and defence and thus receiving a fair trial. The Crown appealed.

The Alberta Court of Appeal, O'Ferall, J.A., dissenting, allowed the appeal.

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 - [See both Civil Rights - Topic 3157 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - An accused charged with second degree murder obtained a stay of proceedings on the grounds that her health issues precluded her from making full answer and defence and thus receiving a fair trial (Charter, ss. 7 and 11(d)) - The Alberta Court of Appeal allowed the Crown's appeal - The trial judge stated that the test for determining when mental and/or physical conditions would breach the right to a fair trial under ss. 7 and 11(d) was whether an accused had established, on a balance of probabilities, that her right to a fair trial would be prejudiced by the fact that her mental and physical health prevented her from making full answer and defence - This was incorrect - Rather, the proper test was: "An accused has established, on a balance of probabilities, that her right to a fair trial will be prejudiced by being required to stand trial when a. her mental or physical health prevents her from adequately defending herself as a result of not being able to (i) understand the nature or object of the proceedings and the possible consequences of the proceedings, or (ii) adequately communicate with her counsel, or (iii) testify when necessary, or b. the trial process itself would seriously imperil her health." - See paragraphs 8 to 26.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - Magomadova was charged with second degree murder - Subsequently, she was diagnosed with an aggressive form of cervical cancer which had a very low survival rate - She was on a rigorous program of pain control which involved the constant use of narcotics - A trial judge granted a stay of proceedings on the grounds that Magomadova's health issues precluded her from making full answer and defence and thus receiving a fair trial (Charter, ss. 7 and 11(d)) - The Crown appealed - Magomadova applied to adduce fresh evidence on the appeal, consisting of letters regarding her deteriorating health from two physicians, a friend, and Magomadova's sister - The Alberta Court of Appeal dismissed the fresh evidence application and allowed the appeal - The fresh evidence, if believed and when taken with the other evidence adduced at trial, could not reasonably have been expected to affect the result - None of the evidence, fresh or otherwise, included the opinion of a mental health professional to the effect that Magomadova could not understand the nature or object of her trial and its possible consequences - Nor did it establish that she could not adequately communicate with counsel, or testify, or that the trial process would cause significant harm to her health - See paragraphs 27 to 41.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - [See Civil Rights - Topic 8374 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Magomadova was charged with second degree murder and was subsequently diagnosed with terminal cancer - The trial judge found that Magomadova's illness precluded her from making full answer and defence and thus receiving a fair trial, contrary to ss. 7 and 11(d) of the Charter - The trial judge granted a stay of proceedings - The Alberta Court of Appeal allowed the Crown's appeal - The trial judge erred in finding a breach of Magomadova's right to a fair trial - Even if there was a breach, the trial judge erred in granting a stay of proceedings - First, the trial judge failed to explicitly address the community's interest in seeing a murder charge proceed to trial - Second, she failed to consider whether there were alternate remedies that were capable of addressing any prejudice to Magomadova - Where an accused's claim was rooted in the need to preserve a fair trial, remedies were focussed on restoring the accused's right to a fair trial rather than dissociating the justice system from the impugned conduct - See paragraphs 42 to 61.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Rights - Topic 3157 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See second Civil Rights - Topic 3157 ].

Cases Noticed:

R. v. Diep (K.T.) (2005), 363 A.R. 321; 343 W.A.C. 321; 2005 ABCA 54, refd to. [para. 7].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 7].

R. v. Liu (Z.Q.) (2014), 354 B.C.A.C. 269; 605 W.A.C. 269; 2014 BCCA 166, refd to. [para. 7].

R. v. Sesay (L.A.) (2013), 288 Man.R.(2d) 201; 564 W.A.C. 201; 294 C.C.C.(3d) 404; 2013 MBCA 8, refd to. [para. 7].

R. v. West (W.F.) (2012), 322 N.S.R.(2d) 360; 1021 A.P.R. 360; 2012 NSCA 112, refd to. [para. 7].

R. v. Badgerow (R.) (2014), 321 O.A.C. 1; 311 C.C.C.(3d) 26; 2014 ONCA 272, refd to. [para. 7].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 7].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 7].

R. v. Hillier (D.), [2000] O.A.C. Uned. 196; 2000 CarswellOnt 3184 (C.A.), refd to. [para. 9].

R. v. T.G.P. (1996), 84 B.C.A.C. 219; 137 W.A.C. 219; 112 C.C.C.(3d) 171 (C.A.), refd to. [para. 10].

R. v. Blakeman, 1988 CarswellOnt 848 (Sup. Ct.), refd to. [para. 13].

R. v. Ross, 1997 CarswellOnt 4499 (C.J.), refd to. [para. 13].

R. v. Grujicic, 1994 CarswellOnt 3558 (C.J.), refd to. [para. 15].

R. v. Dehdar-Gorabi, 2013 ONCJ 603, refd to. [para. 16].

R. v. Richmond, 1999 CarswellOnt 5495 (C.J.), refd to. [para. 17].

R. v. Lindsay, 1997 CarswellOnt 5235 (C.J.), refd to. [para. 17].

R. v. Thurlow, [1995] O.J. No. 83 (C.J.), refd to. [para. 17].

R. v. F.A.H., [1993] O.J. No. 1990 (C.J.), refd to. [para. 17].

R. v. Michalowsky, 1991 CarswellOnt 6255 (C.J.), refd to. [para. 17].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 23].

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 23].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 32].

R. v. Shupe (1988), 85 A.R. 73 (C.A.), affd. on other grounds [1990] 2 S.C.R. 1108; 137 N.R. 154; 125 A.R. 297; 14 W.A.C. 297, refd to. [para. 43].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [paras. 44, 98].

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. [paras. 45, 70].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 45].

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. 45].

R. v. MacDonnell (F.E.), [1997] 1 S.C.R. 305; 210 N.R. 318; 158 N.S.R.(2d) 1; 466 A.P.R. 1, refd to. [para. 46].

R. v. R.J., 2006 CarswellOnt 3819 (Sup. Ct.), refd to. [para. 54].

R. v. King (J.K.) (1995), 130 Nfld. & P.E.I.R. 74; 405 A.P.R. 74 (Nfld. T.D.), refd to. [para. 55].

R. v. J.N.T. (1995), 99 Man.R.(2d) 150 (Q.B.), refd to. [para. 55].

R. v. Fuger, 1988 CarswellOnt 1545 (Sup. Ct.), refd to. [para. 55].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 90].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 90].

Boucher v. R., [1955] S.C.R. 16; 110 C.C.C. 263, refd to. [para. 92].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 93].

R. v. Regan (G.A.) (2002), 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 105].

R. v. Roberts (1975), 24 C.C.C.(2d) 539 (B.C.C.A.), refd to. [para. 111].

Authors and Works Noticed:

Barrett, Joan, and Shandler, Ruin, Mental Disorder in Canadian Criminal Law (2014) (Looseleaf), p. 3-38 [para. 59].

Roach, Kent, Constitutional Remedies in Canada (2nd Ed. 2013) (Looseleaf), p. 9-11 [para. 46].

Counsel:

B.R. Graff, for the appellant;

A. Hepner, Q.C., for the respondent.

This application and appeal were heard on October 9, 2014, before Bielby and O'Ferrall, JJ.A., and Jeffrey, J.(ad hoc), of the Alberta Court of Appeal. The following judgment of the court was delivered at Calgary, Alberta, on January 22, 2015, including the following opinions:

Bielby, J.A. (Jeffrey, J.(ad hoc), concurring) - see paragraphs 1 to 63;

O'Ferrall, J.A., dissenting - see paragraphs 64 to 112.