R. v. Strongitharm (J.), 2016 NLCA 7

• Judge: Rowe, White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: November 16, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: 2016 NLCA 7;(2016), 374 Nfld. & P.E.I.R. 36 (NLCA)

R. v. Strongitharm (J.) (2016), 374 Nfld. & P.E.I.R. 36 (NLCA);

    1164 A.P.R. 36

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. FE.033

Her Majesty the Queen (appellant) v. Julian Strongitharm (respondent)

(201301H0059; 2016 NLCA 7)

Indexed As: R. v. Strongitharm (J.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Rowe, White and Hoegg, JJ.A.

February 19, 2016.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at (2013), 351 Nfld. & P.E.I.R. 140; 1093 A.P.R. 140, found the accused not guilty. The Crown appealed, submitting that the trial judge made errors of law regarding the evidence, resulting in an acquittal that was unsound.

The Newfoundland and Labrador Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial.

Editor's Note: Also see the trial judge's ruling reported at (2013), 351 Nfld. & P.E.I.R. 108; 1093 A.P.R. 108.

Criminal Law - Topic 4944

New trials - When available - General - [See Criminal Law - Topic 5202 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - The accused was acquitted of a charge of possession of cocaine for the purpose of trafficking - The Crown appealed - The Crown's case had alleged that, as part of a common enterprise, the accused, together with his brother, had delivered kilograms of cocaine from British Columbia to St. John's, N.L., in January 2010 - The Crown argued that the trial judge erred in excluding evidence of the ongoing drug trafficking activities of members of the common enterprise between September 2009 and early January 2010 (set out in an Agreed Statement of Uncontested Facts) as irrelevant and immaterial to the charge against the accused - The Newfoundland and Labrador Court of Appeal allowed the appeal - The trial judge erred in treating as irrelevant the facts set out in the Agreed Statement of Uncontested Facts - That error had a cascading effect contributing to the judge's conclusion that the accused's arrest was illegal, the search of his hotel room was illegal, the evidence seized in his hotel room should be excluded under s. 24(2) of the Charter and certain text messages should not be admitted - The trial judge's error could reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal - Accordingly, the court set aside the acquittal and ordered a new trial - See paragraphs 7 to 23.

Cases Noticed:

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 3].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 20].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 21].

Counsel:

Paul Adams, for the appellant;

John Lavers, for the respondent.

This appeal was heard on November 16, 2015, before Rowe, White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. The following judgment of the Court of Appeal was delivered by Rowe, J.A., on February 19, 2016.