Case information
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30643
Kenneth David MacKay v. Her Majesty the Queen
(Saskatchewan) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2006-01-12 | Transcript received, (44 pages) | |
| 2006-01-11 | Appeal closed | |
| 2005-12-15 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2005-12-15 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2005-12-14 |
Judgment on the appeal rendered, CJ Bi LeB De F Abe Cha, The appeal from the judgment of the Court of Appeal for Saskatchewan, Number 519, 2004 SKCA 24, dated February 18, 2004, was heard this day and the following judgment was rendered: The Chief Justice (orally) – We are all of the view that this appeal should be dismissed. On the issue of the charge, we are satisfied that, while it was not perfect, it was adequate. The function of instructions to the jury is to "explain the relevant law and so relate it to the evidence that the jury may appreciate the issues or questions they must pass upon in order to render a verdict of guilty or not guilty" (Azoulay v. The Queen, [1952] 2 S.C.R. 495, at p. 503). The charge here contained no error of law or fact, and it set out the issues and the essential evidence bearing on them. The charge was lengthy – 2.5 days – and the reading for several continuous hours of extended passages of evidence from the judge's notes is a practice to be discouraged. As the Saskatchewan Court of Appeal, citing English authority, pointed out, A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's note book. ((2004), 241 Sask. R. 238, 2004 SKCA 24, at para. 14 (quoting Lord Hailsham L.C. in R. v. Lawrence, [1982] A.C. 510 (H.L.), at p. 519))However, in this case we are satisfied the length of the charge did not mislead or confuse the jury or otherwise have an adverse impact on the fairness of the trial. Despite the inordinate length of the judge's instructions, the jury was ultimately left with a clear understanding of its duty and adequate guidance as to how it was to be discharged.The second issue is whether there was evidence to support the verdict of first degree murder, on the ground that the accused committed the murder in the course of a sexual assault on the victim. The evidence is circumstantial. However, we are satisfied that there was sufficient evidence for a jury, properly instructed and acting reasonably, to conclude that the murder occurred during the course of a sexual assault. For these reasons, we would dismiss the appeal. Dismissed |
|
| 2005-12-14 | Acknowledgement and consent for video taping of proceedings, from all parties | |
| 2005-12-14 |
Hearing of the appeal, 2005-12-14, CJ Bi LeB De F Abe Cha Judgment rendered |
|
| 2005-11-29 | Notice of appearance, Anthony B. Gerein will be appearing. | Her Majesty the Queen |
| 2005-11-29 | Notice of appearance, William H. Roe, Q.C. will be appearing. | Kenneth David MacKay |
| 2005-10-07 | Appeal perfected for hearing | |
| 2005-10-06 | Respondent's record, Completed on: 2005-10-06 | Her Majesty the Queen |
| 2005-10-06 | Respondent's book of authorities, Completed on: 2005-10-06 | Her Majesty the Queen |
| 2005-10-06 | Respondent's factum, (CD rec'd Oct. 6/05 - amended CD rec'd Nov. 29/05), Completed on: 2005-10-07 | Her Majesty the Queen |
| 2005-10-05 | Order on motion to extend time | |
| 2005-10-05 |
Decision on motion to extend time, to serve and file the appellant's factum and book of authorities to Aug. 16/05, Reg Granted |
|
| 2005-10-05 | Submission of motion to extend time, Reg | |
| 2005-10-04 | Response to motion to extend time, from K. Collins (by e-mail), Completed on: 2005-10-04 | Her Majesty the Queen |
| 2005-09-30 | Motion to extend time, to serve and file the factum and book of authorities to Aug. 16/05, Completed on: 2005-09-30 | Kenneth David MacKay |
| 2005-09-19 | General proceeding, (Form 16 re: agent representing two opposing parties) | Kenneth David MacKay |
| 2005-08-16 | Appellant's book of authorities, Completed on: 2005-10-04 | Kenneth David MacKay |
| 2005-08-16 | Appellant's factum, CD rec'd Sept. 28/05 - motion for extension of time requested - rec'd Sept 30/05, Completed on: 2005-10-03 | Kenneth David MacKay |
| 2005-08-15 | Notice of hearing sent to parties | |
| 2005-08-12 | Appellant's record, (14 volumes), Completed on: 2005-08-12 | Kenneth David MacKay |
| 2005-08-11 |
Appeal hearing scheduled, 2005-12-14, Previously Dec. 9/05 Judgment rendered |
|
| 2005-06-20 | General proceeding, questionnaire filed | Kenneth David MacKay |
| 2005-05-20 | Notice of appeal, (Original Notice of Appeal rec'd June 17/05), Completed on: 2005-06-17 | Kenneth David MacKay |
| 2005-05-03 | Correspondence (sent by the Court) to, Kenneth David MacKay re: questionnaire | |
| 2005-05-03 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2005-04-22 | Judgment on leave sent to the parties | |
| 2005-04-21 |
Judgment of the Court on the application for leave to appeal, The motion to file an amended notice of application for leave to appeal is granted and the application to appoint counsel is dismissed. The application for an extension of time and the application for leave to appeal from the judgment of the Court of Appeal for Saskatchewan, Number 519, dated February 18, 2004, are granted. Granted |
|
| 2005-04-21 |
Decision on the miscellaneous motion, (to appoint counsel) Dismissed |
|
| 2005-04-21 |
Decision on the miscellaneous motion, (to file the amended notice of application for leave to appeal) Granted |
|
| 2005-04-21 |
Decision on motion to extend time to file and /or serve the leave application Granted |
|
| 2005-03-21 | Submission of miscellaneous motion, re: to appoint counsel, Ma F Abe | |
| 2005-03-21 | Submission of miscellaneous motion, Ma F Abe | |
| 2005-03-21 | Submission of motion to extend time to file and/ or serve the leave application, Ma F Abe | |
| 2005-03-21 | All materials on application for leave submitted to the Judges, Ma F Abe | |
| 2005-03-17 | Notice of miscellaneous motion, (to file the amended notice of application for leave to appeal)(fax copy)(original received on March 22, 2005), Completed on: 2005-03-22 | Kenneth David MacKay |
| 2005-03-08 | Response to miscellaneous motion, (Letter Form), from A. Gerein dated March 3, 2005, Completed on: 2005-03-08 | Her Majesty the Queen |
| 2005-01-28 | Notice of application for leave to appeal, (amended notice pursuant section 691(1) (fax copy)(service and motion to file the amended notice requested) | Kenneth David MacKay |
| 2004-12-15 | Letter acknowledging receipt of an incomplete application for leave to appeal | |
| 2004-12-10 | Respondent's response on the application for leave to appeal, Completed on: 2004-12-10 | Her Majesty the Queen |
| 2004-12-01 | Notice of miscellaneous motion, (to appoint counsel)(included in leave book), Completed on: 2004-12-01 | Kenneth David MacKay |
| 2004-12-01 | Motion to extend the time to file and or serve the application for leave to appeal, (Included in application for leave), Completed on: 2004-12-15 | Kenneth David MacKay |
| 2004-12-01 | Application for leave to appeal, (signatures on C/A judgment missing - no signatures issued at C/A) (signature of argument rec'd Dec. 17/04 by fax - original rec'd Dec. 20/04), Completed on: 2004-12-20 | Kenneth David MacKay |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| MacKay, Kenneth David | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: MacKay, Kenneth David
Counsel
313-220 3rd Avenue South
Saskatoon, Saskatchewan
S7K 1M1
Telephone: (306) 244-9865
FAX: (306) 934-6827
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Her Majesty the Queen
Counsel
1874 Scarth Street, 3rd Floor
Regina, Saskatchewan
S4P 3V7
Telephone: (306) 787-5490
FAX: (306) 787-8878
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Summary
Keywords
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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
David Kenneth MacKay appeals his conviction before a judge and jury for the first degree murder of Crystal Lee Paskemin. MacKay and Paskemin, although not previously acquainted, left a Saskatoon bar together. DNA analysis later confirmed that remains found on a road outside of Saskatoon were those of Crystal Paskemin. While the cause of death was a laterally crushed skull, Ms. Paskemin also had a broken jaw with one missing tooth, extensive burns to her upper body and injuries consistent with having been dragged behind a vehicle. Crystal Paskemin's body was nude with the exception of one sock. Despite the fact that MacKay tried to clean his vehicle, a search for forensic evidence revealed that Ms. Paskemin's DNA was found in several locations on the truck as well as MacKay's belt.
MacKay testified at trial and admitted to offering Ms. Paskemin a ride home, but said that she had refused to get out of his vehicle when they arrived at her home so they proceeded to drive around a rural area. MacKay stated that he pulled Ms. Paskemin from his truck after she refused to get out of the vehicle and drove away, turning around to offer her a ride into the City. At this point Ms. Paskemin stumbled into the truck's path and MacKay ran over her while she was still upright. He said that after he had concluded that she was dead, he put a chain on Crystal Paskemin and dragged her down the road. MacKay testified that he then drove home and proffered a series of differing excuses to his estranged wife about how he had cut his hand on the knuckle.
The Crown's theory was that at some point Mr. MacKay forced or attempted to force sexual contact and that after a struggle, he punched Ms. Paskemin in the jaw, breaking it, and causing her tooth to come out. The Crown contended that while she was lying on the road, and to cover a serious crime, he drove over her head with his truck, burned her body in an attempt to destroy physical evidence, dragged her from the scene and buried her in the snow. After a lengthy trial MacKay was convicted of first degree murder. His appeal to the Court of Appeal was unanimously dismissed.
Lower court rulings
Court of Queen’s Bench of Saskatchewan
QBJ 16/01
Applicant convicted of first degree murder contrary to section 235(1) of the Criminal Code
Court of Appeal for Saskatchewan
519
Appeal from conviction dismissed
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
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