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APPEALS - Grounds - Question of law - Leave to - Mootness

Wednesday, March 06, 2019 @ 7:53 AM  

Lexis Advance® Quicklaw®
Application by the deceased offender for leave to appeal a decision that denied the appointment of a personal representative to prosecute his appeal from a summary conviction for sexual assault. The complainant testified at trial that a taxi driver touched her genitals. She and three independent witnesses identified the appellant as the taxi driver. A police officer identified the appellant after listening to the 911 call, which recorded the driver’s voice. The appellant committed suicide before the sentencing hearing occurred but after filing a notice of appeal. The grounds of appeal were that the trial judge erred in law in applying the law of identification evidence, including cross-racial voice identification. The chambers judge found the grounds of appeal were not strong and that the issue of cross-racial voice identification was not evasive of appellate review.

HELD: Leave to appeal granted; appeal dismissed. The chambers judge improperly merged the application for the appointment of a personal representative into a determination of whether the appeal should be dismissed as abated. The chambers judge was right to examine the strength of the grounds of appeal. There was no error in his conclusions that the grounds of appeal were not strong or that while cross-racial identification was an issue of general public importance, it had not been otherwise evasive of appellate review. There were no special circumstances that made it in the interests of justice to hear the appeal rendered moot by the appellant’s death. It was patent that there was ample evidence to support the conviction. Dissenting reasons were provided.

R. v. MacLellan, [2019] N.S.J. No. 19, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., D.R. Beveridge and E. Van den Eynden JJ.A. January 18, 2019. Digest No. TLD-March42019008