Elek Reitsma

On a criminal appeal as of right, the Court considered whether the appellate court properly substituted a first degree murder conviction after finding legal error in the trial judge’s planning-and-deliberation analysis under s. 231(2) of the Criminal Code.

The trial judge had convicted on second degree murder and rejected first degree murder on the basis that planning and deliberation were not established, while also addressing constructive first degree murder under s. 231(5).

The appellate court allowed the Crown appeal, quashed the acquittal on first degree murder, and entered a first degree murder conviction under both s. 231(2) and s. 231(5).

The Court held that the trial judge applied the wrong legal test for planned and deliberate murder and that, absent that error, the factual findings supported first degree murder under s. 231(2).

The appeal was dismissed, and it was unnecessary to decide the s. 231(5) issue.

The applicant pled guilty to conspiracy to commit robbery and robbery related to a series of carjackings and was sentenced to 30 months' imprisonment.

He brought a motion for leave to appeal his sentence and for bail pending appeal.

The Crown did not oppose leave to appeal but opposed bail.

The motion judge granted leave to appeal but dismissed the application for bail, finding the applicant failed to demonstrate that his appeal had sufficient merit to cause unnecessary hardship if he remained detained.