R. v. Harry
Because the Crown cannot rely on issue estoppel to prevent the accused from contesting citizenship (per R. v. Mahalingam) and the trial judge applied issue estoppel, the appellant was denied the right to make full answer and defence; that denial rendered the conviction unsafe, requiring quashing and a new trial.
Source-derived case information.
- Citation
- 2009 ONCA 197
- Parties
- Appellant: Damien Ravenal Harry aka Roger Norris Harry; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 4 March 2009
- Procedural Posture
- Criminal Appeal / Appeal From Conviction
- Outcome
- Appeal allowed; conviction quashed; new trial ordered.
- Legal Topics
- Issue Estoppel, Citizenship, Deportation Order, Right to Full Answer and Defence, New Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damien Ravenal Harry aka Roger Norris Harry
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction
Legal Issues
- 1 Whether the Crown can rely on issue estoppel to prevent the accused from contesting citizenship
- 2 Whether the appellant was deprived of the right to make full answer and defence by the trial judge's reliance on issue estoppel
- 3 Whether the conviction must be quashed and a new trial ordered
Ratio Decidendi
Because the Crown cannot rely on issue estoppel to prevent the accused from contesting citizenship (per R. v. Mahalingam) and the trial judge applied issue estoppel, the appellant was denied the right to make full answer and defence; that denial rendered the conviction unsafe, requiring quashing and a new trial.
Court Disposition
Appeal allowed; conviction quashed; new trial ordered.
Orders
- Appeal allowed
- Conviction quashed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Harry Collection Decisions of the Court of Appeal Date 2009-03-04 Neutral citation 2009 ONCA 197 Docket numbers C46617 Judges Moldaver, Michael James; MacFarland, Jean Louise; Epstein, Gloria Jean Subject Criminal Decision Content CITATION: R. v. Harry, 2009 ONCA 197 DATE: 20090303 DOCKET: C46617 COURT OF APPEAL FOR ONTARIO Moldaver, MacFarland and Epstein JJ.A. BETWEEN: Damien Ravenal Harry aka Roger Norris Harry Appellant and Her Majesty the Queen Respondent Raj Napal for the appellant Catrina D. Braid for the respondent Heard and endorsed: March 2, 2009 On appeal from conviction entered by Justice Hugh K. Atwood of the Ontario Court of Justice dated January 9, 2007 APPEAL BOOK ENDORSEMENT [1] Through no fault on the part of the learned trial judge, the appellant was deprived of his right to make full answer and defence to the charge of unlawfully entering Canada after being the subject of a removal order. Unfortunately, the trial judge was of the view that the Crown could rely on issue estoppel to prevent the appellant from showing (or attempting to show), that he was a Canadian citizen and therefore not subject to a deportation order. The recent decision of the Supreme Court of Canada in R. v. Mahalingam [2008], S.C.J. No. 64 (S.C.C.), decided after this case, makes it clear that the Crown cannot rely on issue estoppel. Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered.