James Stewart

The appellant appealed his convictions for robbery, attempted murder, and firearm offences arising from a shootout with police.

At trial, he advanced an alibi defence that was not disclosed prior to his testimony.

He argued on appeal that the trial judge erred in her jury instructions regarding the late disclosure of his alibi, the failure to call his mother as an alibi witness, and the lack of an unsavory witness caution for a key Crown witness.

He also alleged ineffective assistance of counsel for failing to serve a notice of alibi.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions and concluding that defence counsel's decision not to serve a notice of alibi was a competent tactical choice.

The deceased died from a brain injury after being assaulted twice in quick succession by two different individuals.

At the preliminary inquiry, the judge discharged the first assailant on a murder charge, finding insufficient evidence that his assault caused the death.

The judge also discharged the second assailant on manslaughter and assault charges, finding insufficient identification evidence.

The Crown sought judicial review.

The reviewing judge quashed the first assailant's discharge but upheld the second assailant's discharge.

On appeal, the Court of Appeal held that the preliminary inquiry judge committed jurisdictional error in both instances by exceeding his limited weighing function under the Criminal Code and failing to consider the entirety of the evidence.

The first assailant's committal for murder was upheld, and the second assailant's matter was remitted for committal on assault and reconsideration of manslaughter.