No exceptional circumstances warranting reopening of appeal in murder case: Alberta Court of Appeal

Person alleged ineffective assistance of appellate counsel, trial judge's error

No exceptional circumstances warranting  reopening of appeal in murder case: Alberta Court of Appeal
The applicant was convicted of first- and second-degree murder

The Alberta Court of Appeal has denied a convicted murderer’s application to reopen a dismissed appeal without evidence of miscarriage of justice or new arguments that would affect the outcome.

In R v. Ouellette, 2022 ABCA 301, Christian Ouellette was convicted by a lone judge of first- and second-degree murder for shooting his victims in a parking lot in Calgary. He filed his notice of appeal in 2020, raising evidentiary issues, ineffective assistance to counsel, and reasonable apprehension of bias, among others.

Ouellette’s appeal was dismissed pursuant to a memorandum. The appellate court found that the evidence against him was substantial and compelling.

A month later, Ouellette sought to reopen the appeal on the grounds of ineffective assistance to counsel and the trial judge’s error addressing the alleged Jordan delay. Supporting the application was his father’s affidavit, which sought to establish that the appellate counsel advised abandoning the two grounds. Ouellette allegedly disagreed but had no choice but to follow the advice, given the deadlines.

In response, Ouellette’s appellate counsel also submitted evidence. However, during the proceedings, Ouellette had multiple delays and requested multiple extensions. The court advised in July 2022 that no further materials would be considered by the panel.

The appellate court dismissed the application.

On the preliminary issue of jurisdiction, the appellate court ruled that there is no statutory authority to rehear a criminal case once it has been disposed. However, the court noted that it may reconsider the appeal in exceptional or unusual circumstances if a formal judgment had not yet been entered. Here, no formal judgment had been entered, said the court.

Nevertheless, the appellate court found that Ouellette failed the test to reopen an appeal.

The purpose of reopening an appeal is to address situations where the court was misled about the record or the issues, it overlooked or misapprehended evidence, or there were patent errors in the decision or calculations, said the court.

Other factors to consider included the risk of miscarriage of justice, whether new arguments would affect the outcome, and whether the parties could have addressed the issue in the original hearing, said the court.

The appellate court preferred the evidence of the appellate counsel. While the affidavits were admissible, the appellate court found that Ouellette’s evidence was vague and lacked details of specific conversations with any type of corroboration.

Further, the appellate court found that Ouellette failed to establish a miscarriage of justice or whether the new arguments would affect the outcome. Ouellette did not present evidence that he would have been successful had the appellate counsel proceeded with the original plan, said the court.

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