Case information

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Criminal law - First degree murder - Trial - Jury instructions - Whether, in the circumstances of this case, the curative proviso contained in Criminal Code section 686(1)(b)(iii) ought to be applied to the trial judge’s error in instructing the jury concerning the use to be made by the jury of the Appellant’s statements to others - Whether the fresh evidence respecting information not disclosed at trial sought to be added on appeal meets the test for admissibility on appeal as enunciated by the Supreme Court of Canada in R. v. Dixon, [1998] 1 S.C.R. 244.

In 2001, the Appellant, Dowling, Madinsky and Favell were involved in the drug business in the Lower Mainland of British Columbia including growing and selling marihuana and trafficking in cocaine. In early 2001, at Dowling’s instigation, the Appellant joined the group’s drug business and resided at Madinsky’s apartment in Vancouver. Dowling and the Appellant directed the operation. Notionally, Dowling and the Appellant were to split the profits 50/50, with Dowling then splitting his share equally with Madinsky. Madinsky had become friends with Dowling in early 2000.

The group planned to transport marihuana to the United States and bring cocaine back to Canada. The plan involved growing marihuana and Madinsky recruited his friend Favell to help. Favell leased a house in Burnaby, which was converted into a grow house managed by Madinsky and Favell. Madinsky leased a van to transport marihuana.

In April 2001, Dowling was killed, the cause of death being four gun shots to the back of the head. Madinsky and the Appellant were present at the time of the shooting. Madinsky was arrested for Dowling’s murder in November 2001 but was released without charges. He was later given immunity in exchange for his testimony and witness protection about his drug dealings. The Appellant was convicted of the first degree murder of Javan Dowling. After conviction, it came to the Appellant’s attention that a person named Michael Maze had been interviewed by two Vancouver Police Department homicide detectives who were investigating the Dowling murder. Maze told the officers that he met with Madinsky, the Appellant and others at Madinsky’s apartment in Vancouver. The detectives did not pass this information on to Crown counsel because Maze, at the time, was a confidential informant in connection with a case in Alberta and his identity had to be protected.

On appeal, the majority of the Court of Appeal dismissed the appeal. Rowles J.A., in dissent, would have allowed the appeal and ordered a new trial on the basis of whether, in the circumstances of this case, the curative proviso contained in Criminal Code section 686(1)(b)(iii) ought to be applied to the trial judge’s error in instructing the jury concerning the use to be made by the jury of the Appellant’s statements to others and whether the fresh evidence respecting information not disclosed at trial sought to be added on appeal meets the test for admissibility on appeal.