crown seeking supreme court permission to appeal saskatchewan decision on murder case
it is not yet clear whether the supreme court of canada will hear the crown's appeal of a saskatchewan decision which set aside two of dillon whitehawk's murder convictions.
3 minute read
dillon whitehawk is appealing his conviction on two counts of first-degree murder. he's shown being escorted by deputy sheriffs to the regina court of king's bench on june 10, 2022 in regina.
kayle neis
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regina leader-post
in october, saskatchewan’s highest court set aside two of dillon ricky whitehawk’s murder convictions and ordered a new trial. but the crown feels the decision by the saskatchewan court of appeal (skca) should be reviewed, and it has asked the supreme court of canada (scc) to take a look.
an application for leave to appeal was filed on dec. 6, which means the crown is asking for the scc’s permission to appeal.
the crown needs permission to revisit the decision that set aside the convictions and ordered a new trial because that decision was made unanimously by the three skca judges who heard the case.
only if permission is granted by the supreme court will the appeal go ahead.
the case stems back to late 2019 when two men were gunned down in drive-by shootings. jordan gaiton denton and keenan scott toto were killed as a result of the incidents, which occurred on nov. 9, 2019 and dec. 1, 2019, respectively.
keenan scott toto.
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the trial was laden with evidence about regina street gangs, including the indian mafia. whitehawk, now 30 years old, was said to have been a member of that gang.
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however, he appealed the decision at the skca, making numerous arguments. the appeal turned on only one.
prior to the jury being selected, whitehawk had brought an application for what’s known as a “challenge for cause.”
he was concerned that prospective jurors could harbour potential bias against him for two reasons. first, because he’s indigenous, and second, because the crown intended to allege he was a member of an indigenous street gang.
he proposed that prospective jurors be asked a series of questions with the hope of weeding out individuals who would not be able to objectively decide his case.
while the trial judge allowed for prospective jurors to be questioned regarding racial bias, he did not allow questions specifically about bias toward street gangs.
appeal court justices brian barrington-foote, jeff kalmakoff and jill drennan unanimously decided the trial judge made a mistake.
jordan gaiton denton.
“in the end, i am persuaded that the trial judge’s misapplication of the test for determining whether to permit a challenge for cause created a very real risk that mr. whitehawk did not have a trial before an impartial jury,” kalmakoff wrote.
“in other words, his convictions are properly seen as a miscarriage of justice. his convictions must be set aside, and a new trial must be held.”
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the crown’s application states it is seeking an appeal based on a “ground of public importance.”
trial judges can give juries instructions with regard to things like bias, and the crown’s application notes there are “other normative, contextualized criminal jury trial safeguards.”
these measures can be taken in an effort to ensure jurors don’t harbour a bias that would affect their decision-making process.
the crown’s application asks the scc to consider what proof is required and what the test is for determining that these measures are not sufficient, thereby justifying jurors being asked questions such as the ones whitehawk suggested regarding bias toward street gangs.
it is not clear when the scc will decide whether it will hear the appeal.
whitehawk remains convicted of second-degree murder in relation to the early-2020 killing of keesha cree bitternose, for which he was tried separately. he has also appealed that conviction, with judges hearing arguments earlier this month.
keesha cree bitternose.
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