R. v. Montemurro (C.J.), 2016 BCCA 185

• Judge: Frankel, Harris and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 21, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 185;(2016), 386 B.C.A.C. 113 (CA)

R. v. Montemurro (C.J.) (2016), 386 B.C.A.C. 113 (CA);

    667 W.A.C. 113

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MY.012

Regina (respondent) v. Cory Joseph Montemurro (appellant)

(CA42521; 2016 BCCA 185)

Indexed As: R. v. Montemurro (C.J.)

British Columbia Court of Appeal

Frankel, Harris and Goepel, JJ.A.

April 21, 2016.

Summary:

The accused, in a judgment reported [2014] B.C.T.C. Uned. 2103, was convicted of 11 weapons offences. After conviction, the trial judge retired for health reasons and another trial judge was appointed to sentence the accused. The accused appealed eight of the 11 convictions in his factum and oral argument. At the hearing of the appeal, the accused sought leave to advance grounds of appeal not raised in his factum and an adjournment to address those additional grounds (whether replaced trial judge's health, particulars of which the accused was seeking, resulted in him being unable to carry out his judicial duties when he convicted the accused).

The British Columbia Court of Appeal denied leave and dismissed the appeal. The issues sought to be raised were not new. They were raised in the notice of appeal, but not diligently pursued. The first additional ground raised a pure legal question that could have been advanced without knowing the reason why the trial judge retired. The second ground (ability to perform judicial duties) involved a vague assertion that was unsupported by anything in the transcript to indicate that the trial judge convicted the accused while unable to properly perform his duties.

Criminal Law - Topic 4913

Appeals - Indictable offences - Procedure - Adding grounds of appeal not mentioned in notice of appeal or factum - See paragraphs 1 to 47.

Counsel:

K.S. Westlake, Q.C., and D.J. Song, for the appellant;

J.R.W. Caldwell, for the respondent.

This appeal and application for leave were heard on April 19, 2016, at Vancouver, B.C., before Frankel, Harris and Goepel, JJ.A., of the British Columbia Court of Appeal.

On April 21, 2016, the judgment of the Court was delivered orally and the following opinions were filed:

Frankel, J.A. - see paragraphs 1 to 48, 51;

Harris, J.A. - see paragraph 49;

Goepel, J.A. - see paragraph 50.