R. v. Lohrer, [2004] 1 S.C.R. 627, 2004 SCC 24

Allan Wayne Lohrer Appellant/Respondent on motion

v.

Her Majesty The Queen Respondent/Applicant on motion

Indexed as: R. v. Lohrer

Neutral citation: 2004 SCC 24.

File No.: 30160.

2004: April 19.

Present: McLachlin C.J. and Major, Binnie, Arbour and Fish JJ.

motion to quash an appeal

Criminal law — Appeals — Supreme Court of Canada — Appeal as of right — Dissent in Court of Appeal raising question of law — Motion to quash appeal dismissed.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 691(1)(a).

MOTION to quash an appeal from a judgment of the British Columbia Court of Appeal (2003), 186 B.C.A.C. 58, 306 W.A.C. 58, [2003] B.C.J. No. 1952 (QL), 2003 BCCA 457, dismissing the accused’s appeal from his convictions for aggravated assault, assault causing bodily harm and uttering threats. Motion dismissed.

Shawn P. Buckley, for the respondent/applicant on motion.

Kenneth Madsen, for the appellant/respondent on motion.

The judgment of the Court was delivered orally by

[1] Arbour J. — We are of the view that the dissent relied upon by the appellant as the foundation of his appeal as of right under s. 691(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, is properly construed as a dissent on a question of law. Hollinrake J.A. concluded his dissenting opinion saying:

I have concluded that the misapprehensions found in the reasons of the trial judge primarily on the issue of credibility are such that it cannot be said the appellant received a fair trial. It follows from Morrissey [(1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.)] that there has been a miscarriage of justice and there must be a new trial.

((2003), 186 B.C.A.C. 58, 2003 BCCA 457, at para. 56)

[2] The motion to quash is dismissed.

Motion dismissed.

Solicitor for the respondent/applicant on motion: Ministry of Attorney General, Vancouver.

Solicitors for the appellant/respondent on motion: Buckley & Company, Kamloops.