Case information
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40537
Mitchell Lui v. His Majesty the King
(New Brunswick) (Criminal) (By Leave)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2023-06-15 | Close file on Leave | |
| 2023-05-25 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2023-05-25 | Judgment on leave sent to the parties | |
| 2023-05-25 |
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. The application for leave to appeal from the judgment of the Court of Appeal of New Brunswick, Number 90-21-CA, 2022 NBCA 28, dated May 19, 2022, is dismissed. Dismissed |
|
| 2023-05-25 |
Decision on motion to extend time to file and /or serve the leave application, See decision on judgment Granted |
|
| 2023-04-17 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2023-04-17 | Submission of motion to extend time to file and/ or serve the leave application, for consideration by the Court | |
| 2023-02-10 | Certificate (on limitations to public access), Form 23B, (Printed version filed on 2023-02-10) | Mitchell Lui |
| 2023-02-10 | Applicant's reply to respondent's argument, (Letter Form), Completed on: 2023-02-10, (Printed version filed on 2023-02-10) | Mitchell Lui |
| 2023-02-02 | Certificate (on limitations to public access), Form 23B | His Majesty the King |
| 2023-02-02 | Certificate (on limitations to public access), Form 23A | His Majesty the King |
| 2023-02-02 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2023-02-03, (Printed version filed on 2023-02-03) | His Majesty the King |
| 2022-12-29 | Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2022-12-29 | |
| 2022-12-16 | Affidavit, (Letter Form), (Printed version due on 2022-12-23) | Mitchell Lui |
| 2022-12-16 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version due on 2022-12-23) | Mitchell Lui |
| 2022-12-16 | Certificate (on limitations to public access), (Letter Form), 23A, (Printed version due on 2022-12-23) | Mitchell Lui |
| 2022-12-16 | Motion to extend the time to file and or serve the application for leave to appeal, (Book Form), Completed on: 2022-12-29, (Printed version due on 2022-12-23) | Mitchell Lui |
| 2022-12-16 | Application for leave to appeal, (Book Form), Completed on: 2022-12-16 | Mitchell Lui |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Lui, Mitchell | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Respondent | Active |
Counsel
Party: Lui, Mitchell
Counsel
Ritchie Mill
10171 Saskatchewan Dr NW #414
Edmonton, Alberta
T6E 4R5
Telephone: (780) 655-1611
Email: peter@sankoffcriminallaw.com
Agent
1800 - 275 Slater Street
Ottawa, Ontario
K1P 5H9
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca
Party: His Majesty the King
Counsel
520 King Street, Suite 610
Fredericton, New Brunswick
E3B 6G3
Telephone: (506) 453-2784
FAX: (506) 453-5364
Email: patrick.mcguinty@gnb.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Summary
Keywords
Criminal law — Evidence — Disclosure — Whether Crown in possession or control of certain evidence that is not in the physical possession of the police — Abuse of process — When Crown may invite a stay of proceedings and appeal following adverse interlocutory ruling.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(Publication ban in case)
At various times during multiple criminal investigations, police obtained text messages,
screenshots, and recordings from the cell phones of six witnesses (the “Phones”). This evidence tended to incriminate the applicant. Some of the witnesses voluntarily turned their phones over to police for extraction, others voluntarily extracted data from their phones on their own and provided that data to police. At the time of trial, police did not have physical possession of any of the Phones, and at least one of the Phones had been replaced by its owner. The applicant applied to have the Phones turned over to him as first-party disclosure.
The application judge held that the witnesses’ voluntary participation in the investigation meant that the Crown retained possession and control of the Phones, and therefore ordered the Crown to turn them over to the applicant as first-party disclosure. The Crown informed the application judge that it could not comply with the order and invited a stay of proceedings.
The Court of Appeal reversed the application judge’s finding that the Crown was in possession and control of the Phones. There was therefore no lawful way for the Crown to comply with the application judge’s order and it had no reasonable alternative but to invite a stay of proceedings and appeal.
Lower court rulings
Court of Queen’s Bench of New Brunswick
SJCR-16-2020
Judicial stay of proceedings entered at Crown invitation after Crown unable to comply with order for first-party disclosure.
Court of Appeal of New Brunswick
2022 NBCA 28, 90-21-CA
Appeal allowed and matter remitted for trial.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available