Her Majesty the Queen v. Dean Daniel Kelsie
(N.S.) (Criminal) (By Leave)
Criminal law - Evidence, Charge to jury - Criminal law – Evidence – Co-conspirators hearsay – Charge to jury – Curative proviso – Admissibility of evidence under Carter test – Admissibility of a witness’s evidence to prove membership in a conspiracy – Use of acts and declarations by co-conspirators prior to accused joining conspiracy to prove accused’s membership in conspiracy – Whether there was an air of reality to offence of manslaughter – Whether trial judge erred by not charging jury on manslaughter – Whether trial judge erred by not instructing jury on planning and deliberation required of a principal to return verdict of first degree murder for an aider – Whether Court of Appeal erred in declining to invoke curative proviso?.
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In October 2000, Sean Simmons was fatally shot. The murder was planned by a group of drug dealers. Mr. Kelsie was a member of the drug dealing group but he was not involved in planning the murder. On the day of the murder, he was in a car with three of the conspirators, Mr. Derry, Ms. Potts and Mr. James. They drove to the apartment building where the shooting occurred. When they arrived, Mr. Derry told Mr. James that he shouldn’t be doing it because he was going to be recognized. Mr. James turned to Mr. Kelsie, handed him a gun and said “You’re going to have to do it then”. Mr. Kelsie agreed. They met the Mr. Gareau. Mr. Kelsie and Mr. Gareau left together. Mr. Kelsie was carrying the gun. Five minutes later, Mr. Kelsie appeared at a pre-arranged pick-up location with the gun. It had been discharged. After Mr. Kelsie was arrested, he gave a statement to the police. In part, he told them that he believed they only were going to frighten someone. He told the police that Mr. Gareau took the gun from him on the way to the apartment building, Mr. Gareau shot Mr. Simmons, and the Mr. Gareau gave the gun back to him. At trial, Crown counsel argued that Mr. Kelsie was the shooter and committed first degree murder or he was an aider in Mr. Gareau’s first degree murder of Mr. Simmons. The jury convicted Mr. Kelsie of first degree murder and conspiracy to commit murder. The Court of Appeal overturned the convictions and ordered a new trial.
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