Toronto drive-by killer claims double jeopardy on New Brunswick charge

Man serving life for Ontario murder charged with new offence in Moncton

Article content An Ontario man serving life for murder doesn’t think he should have to face a new charge in New Brunswick, claiming he was already cleared of it at the prison where the offence allegedly occurred. Simeon Harty, 32, appeared in Moncton provincial court by phone on Friday, from the maximum-security Donnacona Institution in Quebec. It was the latest in several court appearances Harty has made in Moncton on a charge under the Corrections and Conditional Release Act.

Harty is accused of possessing contraband beyond the visitor control point in Dorchester Penitentiary, specifically a cellphone, on Dec. 12. Harty was supposed to plead on Friday and his lawyer entered a plea for him but not the typical “guilty” or “not guilty.” Nova Scotia lawyer Emma Halpern, also present in court by phone, said her client pleads “autrefois acquit,” which essentially means he’s already been acquitted of this allegation.

Halpern told the judge this matter has already been heard by a court in the prison system and Harty was acquitted of the allegation he had contraband. Prosecutor Damien Lahiton contested that so the court set a half-day hearing for Sept. 8 and Harty will be transported from Quebec to be present. According to the Canadian Charter of Rights and Freedoms, autrefois acquit means, “a person should not be convicted of an offence for which the person was formerly acquitted... (and) the accused must prove that the matter is the same, in whole or in part, and that the new charge is the same as at the first trial.”

It falls under a section of the charter that deals with protection from double jeopardy. “Any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.” Harty will remain in prison awaiting his hearing on the matter.

He’s already serving a life sentence. Harty was convicted in March 2019 in Ontario of second-degree murder in the Oct. 27, 2016, fatal shooting of Kevin Gidden, 23, and discharging a firearm at Kemar McFarlane. In April 2019 was sentenced to life with no chance of parole for 14 years.

Toronto Police investigators said at the time that a gunman shot and killed Gidden in a car around 1 a.m. on Oct. 27 in a Scarborough neighbourhood after the car Gidden was in left a gas station. Harty pulled up and opened fire, with bullets hitting Gidden in the head and arm. His friend drove the wounded man to a police station where paramedics were called and he was taken to hospital, where he later died.

Hardy stood trial on charges of first-degree murder and attempted murder but was convicted of the included offences of second-degree murder and discharging a firearm at the shooting victim’s friend.