R v Catcheway, 2018 MBCA 54

Citation: R v Catcheway, 2018 MBCA 54 Date: 20180510 Docket: AR18-30-09003 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN: ) I. L. SinghHER MAJESTY THE QUEEN ) for the Appellant ) Respondent) R. N. Malaviya ) for the Respondent- and - ) ) Written joint submission filed:richard joseph catcheway ) April 24, 2018 ) (Accused) Appellant) Judgment delivered: ) May 10, 2018 Per curiam [1] The accused appeals his conviction. He also moves for the admission of fresh evidence.

Finally, he applies towithdraw his guilty plea on the basis that to uphold the conviction would result in a miscarriage of justice. [2] The fresh evidence relates to information received subsequent to the accused’s sentencing. It establishes that theaccused could not have committed the offence to which he pled guilty because he was in custody at the Brandon Correctional Centre atthe time the offence occurred in Winnipeg. [3] The Crown does not oppose the accused’s applications for the admission of fresh evidence or for the withdrawal ofhis guilty plea.

The parties have filed a joint factum and consent to conducting this appeal in writing, without an oral hearing. [4] The accused was arrested on September 9, 2017, on a number of offences including being unlawfully in a dwellinghouse contrary to section 349(1) of the Criminal Code (the Code). On November 8, 2017, he pled guilty to being unlawfully in adwelling house and on January 9, 2018, received a sentence of six months’ pre-sentence custody, one day court appearance, and 18months of supervised probation for that offence.

The date of the offence was March 10, 2017. [5] A few weeks later, counsel received a letter from the sentence administrator at Brandon Correctional Centre (thefresh evidence) indicating that the accused had been in their custody from March 1, 2017 to March 20, 2017. In other words, the freshevidence establishes that the accused could not have committed the offence in question. [6] Admission of fresh evidence on appeal is governed by the criteria set out in Palmer v The Queen, (SCC), [1980] 1 SCR 759.

While the evidence that is being sought to be admitted was available at the time the plea was entered, we areall of the view that the interests of justice require that the due diligence requirement be attenuated in the particular circumstances of thiscase. The fresh evidence is admitted. [7] A court of appeal may allow an accused to withdraw their guilty plea where there are valid grounds for so doing (seeR v RT, (ON CA), 1992 CarswellOnt 117 (CA); and R v Pelletier, 2006 MBCA 126).

Moreover, section 686(1)(a)(iii)of the Code provides that an appellate court can allow an appeal against conviction where it is of the opinion that there has been amiscarriage of justice. [8] We are all of the view that, in light of the fresh evidence that conclusively proves the accused’s innocence, it wouldunderstandably be a miscarriage of justice to uphold his guilty plea.

[ 9 ] Accordingly, the fresh evidence motion is granted, the accused is allowed to withdraw his guilty plea, his conviction is quashed and an acquittal is directed. CJM JA JA