R. v. Mayen (D.J.), 2014 MBQB 58

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 24, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBQB 58;(2014), 304 Man.R.(2d) 312 (QB)

R. v. Mayen (D.J.) (2014), 304 Man.R.(2d) 312 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. AP.008

Her Majesty The Queen (respondent) v. Daniel Jurkuch Mayen (accused/applicant)

(CR 13-01-32674; 2014 MBQB 58)

Indexed As: R. v. Mayen (D.J.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

March 24, 2014.

Summary:

Mayen was charged, as an adult, with assault with a weapon with respect to an incident that occurred on April 19, 2007. He applied for habeas corpus alleging that the charge was a nullity and could not form the legal basis for his detention because he was only 17 at the time of the offence. Mayen was born in a refugee camp in Ethiopia. He came to Canada in 2003 with his mother and two brothers. The family's application to immigrate to Canada stated Mayen's date of birth to be January 1, 1988. That was the date of birth shown on his "Confirmation of Permanent Residence" issued by Citizenship and Immigration Canada. The Crown relied on that date of birth to prosecute him as an adult for the offence that occurred in April 2007. However, Mayen said that his true date of birth was August 21, 1989.

The Manitoba Court of Queen's Bench was satisfied that Mayen was born in 1988. The application for habeas corpus was dismissed.

Criminal Law - Topic 8706

Young offenders - General principles - Jurisdiction - Courts - Age of young offender - [See second Habeas Corpus - Topic 2 ].

Evidence - Topic 2501

Special modes of proof - Presumptions - Regularity - Documents - Mayen was charged, as an adult, with assault with a weapon with respect to an incident that occurred on April 19, 2007 - He applied for habeas corpus alleging that the charge was a nullity and could not form the legal basis for his detention because he was only 17 at the time of the offence - Mayen was born in a refugee camp in Ethiopia - He came to Canada in 2003 - January 1, 1988, was the date of birth shown on his "Confirmation of Permanent Residence" (CPR) issued by Citizenship and Immigration Canada - The Crown relied on that date of birth to prosecute him as an adult for the April 2007 offence - The Crown sought to rely on the "presumption of regularity" to argue that the date of birth recorded in the CPR should be presumed to be accurate - The Manitoba Court of Queen's Bench stated that "The Crown in the case at bar is not seeking to rely upon the presumption to confirm a procedural or technical formality with the issuance of the document on which it relies. Rather, it seeks to rely on the presumption to support the substantive content of the document with respect to an issue that is an essential element of the offence before the court. In these circumstances, the presumption should have no application" - See paragraphs 15 to 19.

Habeas Corpus - Topic 2

General - When available - Mayen was charged, as an adult, with assault with a weapon with respect to an incident that occurred on April 19, 2007 - He applied for habeas corpus alleging that the charge was a nullity and could not form the legal basis for his detention because he was only 17 at the time of the offence - After filing the application, Mayen was convicted of a number of offences for which he was awaiting sentence - He was being held in custody on those offences as well the offence in this case so consideration of this habeas corpus application would not likely result in his release from custody - The Manitoba Court of Queen's Bench stated that Mayen should not have to wait until his trial to challenge the legality of the charge - The Supreme Court of Canada had held that the remedy of habeas corpus should be given a "generous and flexible interpretation" and that the remedy was available to challenge the form of a person's detention even if it would not result in the person's liberty - Habeas corpus should be available in this case to determine if the warrant of committal on the charge of assault with a weapon was valid even if there was another legal basis for Mayen's detention - See paragraphs 5 to 8.

Habeas Corpus - Topic 2

General - When available - Mayen was charged, as an adult, with assault with a weapon with respect to an incident that occurred on April 19, 2007 - He applied for habeas corpus alleging that the charge was a nullity and could not form the legal basis for his detention because he was only 17 at the time of the offence - Mayen was born in a refugee camp in Ethiopia - He came to Canada in 2003 with his mother and brothers - The family's application to immigrate to Canada stated Mayen's date of birth to be January 1, 1988 - That was the date of birth shown on his "Confirmation of Permanent Residence" (CPR) issued by Citizenship and Immigration Canada - The Crown relied on that date of birth to prosecute him as an adult for the April 2007 offence - However, Mayen said that his true date of birth was August 21, 1989 - The Manitoba Court of Queen's Bench held that the defence had provided no credible evidence to raise a doubt as to the date of birth recorded on the CPR - The CPR provided the only credible evidence of Mayen's age - The court was satisfied beyond a reasonable doubt that Mayen was born in 1988 - The application for habeas corpus was dismissed - See paragraphs 20 to 46.

Habeas Corpus - Topic 3063

Practice - Hearing on issue of writ - Burden or standard of proof - Daniel Mayen was charged, as an adult, with assault with a weapon with respect to an incident that occurred on April 19, 2007 - He applied for habeas corpus alleging that the charge was a nullity and could not form the legal basis for his detention because he was only 17 at the time of the offence - The defence argued that a criminal standard of proof applied where a habeas corpus application was brought in the context of a criminal proceeding - The Manitoba Court of Queen's Bench stated that "The criminal standard of proof does not apply to every issue decided in the context of a criminal proceeding. ... On the other hand, the defence makes a valid point that the substantive issue here - Daniel's age - should be determined on the basis of the same standard whether it is raised at trial or by way of an application for habeas corpus. In any event, I need not decide the appropriate standard of proof in this case because, as I will explain, Daniel's application fails even applying the criminal standard of proof" - See paragraphs 9 to 14.

Cases Noticed:

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 7].

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33, refd to. [para. 7].

R. v. Desjarlais (J.A.) (1994), 92 Man.R.(2d) 236; 61 W.A.C. 236 (C.A.), refd to. [para. 9].

R. v. Storgoff, [1945] S.C.R. 526, refd to. [para. 10].

R. v. Green - see Green v. Canada.

Green v. Canada (2009), 470 A.R. 209; 2009 ABQB 233, refd to. [para. 11].

R. v. Leschenko (V.N.) (2012), 532 A.R. 216; 2012 ABQB 47, refd to. [para. 11].

R. v. Molina (M.) (2008), 234 O.A.C. 384; 90 O.R. (3d) 223; 2008 ONCA 212, refd to. [para. 16].

R. v. Male (A.) (2013), 289 Man.R.(2d) 146; 2013 MBPC 12, refd to. [para. 44].

Counsel:

Libby L. Standil, for the respondent;

Wendy Y. Martin White, for the applicant.

This application was heard before Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 24, 2014.