R. v. McPherson (I.), (2010) 487 A.R. 157 (CA)

JudgeCostigan, Paperny and Rowbotham, JJ.A.
CourtCourt of Appeal (Northwest Territories)
Case DateApril 20, 2010
JurisdictionNorthwest Territories
Citations(2010), 487 A.R. 157 (CA)

R. v. McPherson (I.) (2010), 487 A.R. 157 (CA);

      495 W.A.C. 157

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MY.030

Her Majesty the Queen (respondent) v. Irvine McPherson (applicant/appellant)

(A-1-AP-1998000770; 2010 NWTCA 3)

Indexed As: R. v. McPherson (I.)

Northwest Territories Court of Appeal

Costigan, Paperny and Rowbotham, JJ.A.

April 23, 2010.

Summary:

On February 6, 1997, the accused was convicted of break and enter a dwelling house and committing sexual assault therein (Criminal Code, s. 348(1)(b)). On September 3, 1998, he was declared a dangerous offender and sentenced to an indeterminate period of detention. On October 11, 2000, the Northwest Territories Court of Appeal dismissed the accused's appeals as to conviction and sentence. In May 2009, the accused applied for the appointment of counsel under s. 684 of the Code in order to pursue a second appeal. In July 2009, the Acting Chief Justice directed the accused to make further submissions respecting the court's jurisdiction to entertain a second appeal, and therefore its jurisdiction to hear a funding application.

The Northwest Territories Court of Appeal held that the accused had not made a clear and compelling case that would justify the exercise of its discretion to re-open an appeal.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - The Northwest Territories Court of Appeal stated that "As a general rule an appeal court does not have jurisdiction to re-open an appeal once it has been heard and dismissed on the merits. In very exceptional circumstances a court may have jurisdiction to re-open an appeal, but it is an extraordinary power to be exercised only very rarely: R. v. Hummel ... [2003, YKCA] ... The factors relevant to a re-opening application are set out in Hummel at para. 24. 1. Finality is a primary but not always determinative factor. 2. The interests of justice include finality and the risk of a miscarriage of justice. 3. The applicant must make out a clear and compelling case to justify a re-opening. 4. If the case has been heard on the merits the applicant must show that the court overlooked or misapprehended the evidence or an argument. 5. The error must go to a significant aspect of the case." - See paragraph 6.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - [See Criminal Law - Topic 6515 ].

Criminal Law - Topic 6515

Dangerous or long-term offenders - Detention - Appeals - When available - On February 6, 1997, the accused was convicted of break and enter a dwelling house and committing sexual assault therein (Criminal Code, s. 348(1)(b)) - On September 3, 1998, he was declared a dangerous offender and sentenced to an indeterminate period of detention - On October 11, 2000, the Court of Appeal dismissed the accused's appeals as to conviction and sentence - In May 2009, the accused applied for the appointment of counsel to pursue a second appeal - The Acting Chief Justice directed the accused to make further submissions respecting the court's jurisdiction to entertain a second appeal, and therefore its jurisdiction to hear a funding application - The basis of the application related to the interpretation of Part XXIV of the Criminal Code - Part XXIV was amended on August 1, 1997, between the date of the Crown's application to designate the accused a dangerous offender and the hearing - The amended legislation introduced the long-term offender category and provided a mechanism to allow for community supervision after a long-term offender's determinate sentence had expired - The trial judge concluded that the amended version should not apply - He considered that: (1) counsel for both parties agreed that Part XXIV of the Criminal Code as it existed before the amendments should be the operative legislation; and (2) the pre-amendment legislation was more favourable to the accused because it allowed for the imposition of a discretionary indeterminate sentence after a finding that an offender was dangerous - The trial judge then applied the pre-amendment legislation to the facts, weighed the relevant evidence, found the accused to be a dangerous offender, and imposed an indeterminate sentence of detention - The amended legislation was subject to two different interpretations and in 2003 the Supreme Court of Canada interpreted the amended legislation (R. v. Johnson) - The accused submitted that Johnson established new law which applied to his circumstances - The Northwest Territories Court of Appeal held that the accused had not made a clear and compelling case that would justify the exercise of its discretion to re-open an appeal.

Cases Noticed:

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 4].

R. v. Francis (E.C.) (2008), 446 A.R. 200; 442 W.A.C. 200; 2008 ABCA 407, refd to. [para. 4].

R. v. Hummel (D.) (2003), 182 B.C.A.C. 93; 300 W.A.C. 93; 175 C.C.C.(3d) 1; 2003 YKCA 4, appld. [para. 6].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 105 D.L.R.(4th) 199, refd to. [para. 7].

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 115 C.C.C.(3d) 89 (C.A.), refd to. [para. 60].

R. v. Rhingo (L.) - see R. v. Hamilton (E.).

Counsel:

B. Nordin, for the respondent;

B. Latham, for the applicant/appellant.

This application for re-hearing of a sentence appeal was heard on April 20, 2010, by Costigan, Paperny and Rowbotham, JJ.A., of the Northwest Territories Court of Appeal. The court delivered the following reasons for judgment on April 23, 2010.

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