Zacky Deleon, et al. v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)


Criminal law - Evidence - Criminal law — Evidence — Whether the Court of Appeal erred in dismissing the applicants’ application to admit a witness’ affidavit as fresh evidence on appeal.


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The Applicants Allen, Deleon and Restrepo were convicted of first degree murder in July 2008 for the execution style shooting of Mauricio Castro that took place in July 2005. Mr. Restrepo was the leader of a Toronto drug distribution network that owed approximately $1 million to Castro. The Crown had argued that Mr. Restrepo arranged the murder to extinguish the debt and to steal cocaine belonging to Mr. Castro, that Mr. Allen was the actual killer and that Mr. Deleon was deeply involved in the enterprise both before and after the killing took place. In his address to the jury, the trial judge issued a strong Vetrovec warning for one of the witnesses, a milder warning for another and declined to warn the jury about a third witness, K. The applicants’ appeals were dismissed on November 30, 2011. Subsequently, K swore an affidavit asserting that his evidence at trial was false. On August 12, 2015, the applicants sought leave to appeal the decision of the Court of Appeal, a motion to extend time and they also sought to have K’s affidavit admitted as fresh evidence. On February 16, 2016, the case was remanded to the Court of Appeal to determine the admissibility of the fresh evidence. The remainder of the application for leave to appeal was held in abeyance pending a determination of the fresh evidence application. On May 31, 2018, the Court of Appeal dismissed the applicants’ motion to adduce fresh evidence and on September 4, 2018, the applicants’ motion to extend time to serve and file the application for leave to appeal from the November 30, 2011, decision of the Court of Appeal was dismissed without prejudice to the applicants’ right to serve and file an application for leave to appeal from the decision of the Court of Appeal dated May 31, 2018.