Docket

38129

Her Majesty the Queen v. Dean Daniel Kelsie

(Nova Scotia) (Criminal) (By Leave)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2019-06-03 Appeal closed
2019-04-15 Formal judgment sent to the registrar of the court of appeal and all parties
2019-04-15 Judgment on appeal and notice of deposit of judgment sent to all parties
2019-04-05 Transcript received, 109 pages
2019-03-29 Correspondence received from, (Letter Form), D. Lynne Watt. RE: Letter from the respondent dated March 29, 2019. Her Majesty the Queen
2019-03-29 Correspondence received from, (Letter Form), Matthew Estabrooks. Letter with respect to the judgment on appeal. Dean Daniel Kelsie
2019-03-27 Judgment on the appeal rendered, (The judgment pronounced at the hearing was amended.), CJ Abe Mo Ka Côt Row Mar,
The appeal from the judgment of the Nova Scotia Court of Appeal, Number CAC 211631, 2017 NSCA 89, dated December 8, 2017, was heard on March 27, 2019, and the Court on that day delivered the following judgment orally:

KARAKATSANIS J. — We agree with the conclusion of the Court of Appeal that the trial judge’s instructions on party liability for first degree murder were in error. As a result, the conviction for first degree murder cannot stand.

We do not, however, agree with the Court of Appeal that the trial judge was required to charge the jury on manslaughter. While not determinative, we agree with defence counsel’s position at trial that there was no basis to leave it with the jury as an available verdict. In our view, the evidence was, at best, tenuous and speculative, and did not meet the air of reality test.

With respect to the conspiracy charge, we do not agree with the Court of Appeal. In the particular circumstances of this case, we are not persuaded that the trial judge erred in the evidence he left for the jury to consider as part of the third prong of the Carter test for the admissibility of co-conspirator hearsay (R. v. Carter, [1982] 1 S.C.R. 938). We note, in this regard, that the defence of the accused to the charge of conspiracy is that he did not know the nature and scope of the alleged conspiracy. Accordingly, we would not have interfered with the conviction for conspiracy to commit murder.

Given our conclusions, the parties agree that it would be appropriate to substitute a verdict of second degree murder in place of the verdict for first degree murder. We are satisfied that such a verdict is appropriate in the circumstances.

As a result, pursuant to s. 686(1)(b)(i) and s. 686(3) of the Criminal Code, R.S.C. 1985, c. C-46, we would have dismissed the appeal and substituted a conviction for second degree murder.

Therefore, the appeal is allowed in part. The conspiracy conviction is restored and a second degree murder conviction is entered.

Counsel are encouraged to agree on the appropriate sentence regarding eligibility for parole. The matter is remitted to the trial court for sentencing.

Allowed in part
2019-03-27 Intervener's condensed book, (Book Form), 14 copies (Submitted in Court) Attorney General of Ontario
2019-03-27 Respondent's condensed book, (Book Form), 14 copies (Submitted in Court) Dean Daniel Kelsie
2019-03-27 Appellant's condensed book, (Book Form), 14 copies (Submitted in Court) Her Majesty the Queen
2019-03-27 Hearing of the appeal, 2019-03-27, CJ Abe Mo Ka Côt Row Mar
Judgment rendered
2019-03-26 Correspondence received from, (Letter Form), 1 reserved seat requested. Director of Public Prosecutions of Canada
2019-03-26 Notice of appearance, (Letter Form), Matthew S. Estabrooks will also be present at the hearing. Dean Daniel Kelsie
2019-03-22 Correspondence received from, (Letter Form), Correction regarding their Record and Factum Her Majesty the Queen
2019-03-15 Intervener's factum, (Book Form), Completed on: 2019-03-15 Attorney General of Ontario
2019-03-15 Intervener's factum, (Book Form), Completed on: 2019-03-15 Director of Public Prosecutions of Canada
2019-03-15 Intervener's book of authorities, (Book Form), Completed on: 2019-03-15 Criminal Lawyers’ Association
2019-03-15 Intervener's factum, (Book Form), Completed on: 2019-03-15 Criminal Lawyers’ Association
2019-03-08 Appeal perfected for hearing
2019-03-07 Notice of appearance, (Letter Form), Jennifer A. MacLellan, Q.C. and Mark Scott, Q.C. will be present at the hearing and will both present oral arguments. Her Majesty the Queen
2019-03-07 Notice of appearance, (Letter Form), Amber Pashuk and François Lacasse will be present at the hearing. Ms. Pashuk will present oral arguments. Director of Public Prosecutions of Canada
2019-03-07 Notice of appearance, (Letter Form), Philip Campbell will be present at the hearing and will present oral arguments. Dean Daniel Kelsie
2019-03-07 Notice of appearance, (Letter Form), Ian R. Smith will be present at the hearing and will present oral arguments. Criminal Lawyers’ Association
2019-03-06 Notice of appearance, (Letter Form), Michael Bernstein and John Neander will be present at the hearing. Mr. Neander will present oral arguments. Attorney General of Ontario
2019-03-05 Certificate of counsel (attesting to record), (Letter Form) Dean Daniel Kelsie
2019-03-05 Certificate (on limitations to public access), (Letter Form), 23B Dean Daniel Kelsie
2019-03-05 Respondent's book of authorities, (Book Form), Completed on: 2019-03-05 Dean Daniel Kelsie
2019-03-05 Respondent's record, (Book Form), Completed on: 2019-03-05 Dean Daniel Kelsie
2019-03-05 Respondent's factum, (Book Form), Completed on: 2019-03-05 Dean Daniel Kelsie
2019-02-21 Order on motion to adjourn the hearing of the appeal, by WAGNER C.J.
2019-02-21 Decision on motion to adjourn the hearing of the appeal, CJ,
UPON APPLICATION by the respondent for an adjournment of the hearing scheduled for March 27, 2019, pursuant to rule 7 of the Rules of the Supreme Court of Canada;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motion is dismissed.
Dismissed, no order as to costs
2019-02-21 Submission of motion to adjourn the hearing of the appeal, CJ
2019-02-19 Reply to the motion to adjourn the hearing of the appeal, (Book Form), Completed on: 2019-02-19 Dean Daniel Kelsie
2019-02-12 Response to the motion to adjourn the hearing of the appeal, (Book Form), Completed on: 2019-02-12, (Printed version due on 2019-02-19) Her Majesty the Queen
2019-02-07 Order on motion for leave to intervene, by BROWN J.
2019-02-07 Decision on the motion for leave to intervene, Br,
UPON APPLICATION by the Director of Public Prosecutions of Canada, the Attorney General of Ontario and the Criminal Lawyers’ Association for leave to intervene in the above appeal;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motions for leave to intervene are granted and the said three (3) interveners shall be entitled to each serve and file a factum not exceeding ten (10) pages in length on or before March 15, 2019.
The said three (3) interveners are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal.
The interveners are not entitled to (a) take a position on the outcome of the appeal, or (b) raise new issues, adduce further evidence or otherwise supplement the record of the parties.
Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and respondent any additional disbursements resulting from their interventions.
Granted
2019-02-07 Submission of motion for leave to intervene, Br
2019-02-04 Motion to adjourn the hearing of the appeal, (Book Form), Payment missing (received 2019-02-19)., Completed on: 2019-02-19 Dean Daniel Kelsie
2019-01-31 Response to the motion for leave to intervene, (Letter Form), Completed on: 2019-01-31 Dean Daniel Kelsie
2019-01-31 Response to the motion for leave to intervene, (Letter Form), Completed on: 2019-01-31 Her Majesty the Queen
2019-01-29 Motion for leave to intervene, (Book Form), Completed on: 2019-01-29 Criminal Lawyers’ Association
2019-01-29 Motion for leave to intervene, (Book Form), Completed on: 2019-01-29 Attorney General of Ontario
2019-01-28 Motion for leave to intervene, (Letter Form), Completed on: 2019-01-28 Director of Public Prosecutions of Canada
2019-01-24 Correspondence received from, (Letter Form), D. Lynne Watt. RE: Request to change hearing date. Her Majesty the Queen
2019-01-22 Correspondence received from, (Letter Form), Matthew Estabrooks. Request to change the hearing date. Dean Daniel Kelsie
2019-01-07 Certificate (on limitations to public access), (Letter Form), 23B Her Majesty the Queen
2019-01-07 Certificate of counsel (attesting to record), (Letter Form) Her Majesty the Queen
2019-01-07 Appellant's book of authorities, (Book Form), Completed on: 2019-01-07 Her Majesty the Queen
2019-01-07 Appellant's record, (Book Form), (12 volumes), Volumes 2 to 12 filed electronically only pursuant to rule 38.1, Completed on: 2019-01-07 Her Majesty the Queen
2019-01-07 Appellant's factum, (Book Form), Completed on: 2019-01-07 Her Majesty the Queen
2018-12-10 Notice of hearing sent to parties
2018-12-06 Appeal hearing scheduled, 2019-03-27,
The schedule for serving and filing the material is set as follows:

The appellant’s record, factum and book of authorities, if any, shall be served and filed on or before January 8, 2019.

Any person wishing to intervene in this appeal under Rule 55 of the Rules of the Supreme Court of Canada shall serve and file a motion for leave to intervene on or before January 29, 2019.

The appellant and respondent shall serve and file their responses, if any, to the motions for leave to intervene on or before February 4, 2019.

Replies to any responses to the motions for leave to intervene shall be served and filed on or before February 6, 2019.

Any intervener granted leave to intervene under Rule 59 of the Rules of the Supreme Court of Canada shall serve and file its respective factum and book of authorities, if any, on or before March 15, 2019.

The respondent’s record, factum and book of authorities, if any, shall be served and filed on or before March 5, 2019.
Judgment rendered
2018-11-19 Letter advising the parties of tentative hearing date and filing deadlines (Leave granted)
2018-11-09 Notice of appeal, (Letter Form), Amended notice required-rec'd 2018/11/14, Completed on: 2018-11-09 Her Majesty the Queen
2018-10-12 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2018-10-12 Judgment on leave sent to the parties
2018-10-11 Judgment of the Court on the application for leave to appeal,
The motion for an extension of time to serve and file the application for leave to appeal is granted. It is not necessary to consider the motion for an extension of time to serve and file the response to the application for leave to appeal.

The application for leave to appeal from the judgment of the Nova Scotia Court of Appeal, Number CAC 211631, 2017 NSCA 89, dated December 8, 2017, is granted. The schedule for serving and filing materials will be set by the Registrar.

The parties are required to provide written submissions in their factum addressing the impact of the publication ban on the release of the Court’s reasons in this matter.
Granted
2018-10-11 Decision on motion to extend time, See decision on application.
2018-10-11 Decision on motion to extend time to file and /or serve the leave application, See decision on application.
Granted
2018-09-10 All materials on application for leave submitted to the Judges, Mo Ka Côt, for consideration by the Court
2018-09-10 Submission of motion to extend time, Mo Ka Côt, for consideration by the Court
2018-09-10 Submission of motion to extend time to file and/ or serve the leave application, Mo Ka Côt, for consideration by the Court
2018-08-10 Applicant's reply to respondent's argument, (Book Form), MISSING: Proof of service (rc'd 17/08/2018), Completed on: 2018-08-17 Her Majesty the Queen
2018-07-27 Motion to extend time, (Letter Form), Motion to extend time for Response, Completed on: 2018-07-27 Dean Daniel Kelsie
2018-07-27 Certificate (on limitations to public access), (Letter Form), Form 23B Dean Daniel Kelsie
2018-07-27 Certificate (on limitations to public access), (Letter Form), Form 23A Dean Daniel Kelsie
2018-07-27 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2018-07-27 Dean Daniel Kelsie
2018-06-01 Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2018/06/01
2018-05-17 Certificate (on limitations to public access), (Letter Form), From 23B Her Majesty the Queen
2018-05-17 Certificate (on limitations to public access), (Letter Form), From 23A Her Majesty the Queen
2018-05-17 Motion to extend the time to file and or serve the application for leave to appeal, (Book Form), (Included in the application for leave to appeal), Completed on: 2018-05-17 Her Majesty the Queen
2018-05-17 Application for leave to appeal, (Book Form), Completed on: 2018-05-17 Her Majesty the Queen