R. v. Anderson (W.R.), (2009) 448 A.R. 165 (CA)

• Judge: Paperny,Phillips,Watson
• Neutral Citation: 2009 ABCA 67
• Date: 07 October 2008
• Subject Matter: CRIMINAL LAW,EVIDENCE,CIVIL RIGHTS
• Court: Court of Appeal (Alberta)

R. v. Anderson (W.R.) (2009), 448 A.R. 165 (CA);

      447 W.A.C. 165

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.006

Her Majesty the Queen (respondent) v. Walter Raymond Anderson (appellant)

(0701-0130-A; 2009 ABCA 67)

Indexed As: R. v. Anderson (W.R.)

Alberta Court of Appeal

Paperny and Watson, JJ.A., and Phillips, J.(ad hoc)

February 27, 2009.

Summary:

The accused appealed from his conviction for second degree murder.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators (incl. undercover officers) - Sgt. Lemay arrested the accused for murder and advised him of his s. 10(b) Charter right to counsel - The accused made two calls to counsel before he was interviewed by Cpl. MacDonald - Cpl. MacDonald did not re-Charter or caution the accused - The accused was convicted of second degree murder - The accused appealed, challenging the trial judge's ruling that there was no s. 10(b) Charter infringement in obtaining the accused's statement by Cpl. MacDonald - The accused argued that Cpl. MacDonald essentially ignored his comments to her that he was not satisfied with the legal advice that he had received, as well as his two requests to speak to counsel - The Alberta Court of Appeal held that the trial judge did not err in finding that there was no breach of s. 10(b) - The accused understood his right to silence as told to him by a duty counsel - Cpl. MacDonald did not diminish that understanding or depreciate that advice - See paragraphs 29 to 36.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was charged with first degree murder - A jury found the accused guilty of second degree murder - The accused appealed - The accused argued that the trial judge misdirected the jury by saying "Reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities" - The Alberta Court of Appeal stated that "Taken in the context of the charge as a whole, this inelegant sentence would not have distorted the jury's understanding of proof beyond a reasonable doubt. The jury decided in the appellant's favour on the first degree murder count of the Crown. There is no 'reasonable likelihood' that the jury misunderstood the Crown's burden of proof" - See paragraph 47.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was charged with first degree murder following an undercover sting operation where police officers, posing as members of a criminal organization, recruited the accused to join the organization - The evidence of the undercover operation suggested that the accused was willing to be involved in very serious criminal activity - The trial judge told the jury to not draw an improper inference, stating "You must not consider the character of the accused in reaching your verdict as being someone more likely to commit a crime. Rather, in reaching your verdict, you must consider only the evidence placed before you in deciding whether the Crown has met its burden of proving his guilt beyond a reasonable doubt" - A jury found the accused guilty of second degree murder - The accused appealed, objecting to the trial judge's jury charge concerning character evidence - The Alberta Court of Appeal stated that "The appellant admitted to the jury that he was trying to lie his way into the good graces of this organization, for which he believed he had been employed in a criminal capacity. It is unlikely that the jury would have attached much significance to any words he expressed to them other than those constituting admissions of guilt in the murder. The trial judge did not misdirect the jury in what he said, and it was within his discretion to decide if more was needed" - See paragraphs 57 to 58.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See second Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - A jury found the accused guilty of second degree murder - The accused appealed, complaining about the trial judge's charge on post-offence conduct - One objection related to the trial judge's reference to the accused having seemed "unusually quiet" in the area of a crime scene and not looking at the hotel where the murder occurred - The Alberta Court of Appeal held that this demeanour observation of the accused was more prejudicial than probative - Such demeanour might have been consistent with some internalized concern about the hotel, but equally it might have had no meaning at all - To be post-offence conduct, it had to be more than neutral -Accordingly, the trial judge erred in leaving this evidence with the jury as part of the package of post-offence conduct - It was simply too ambiguous to support an inference - However, the court held that s. 686(1)(b)(iii) of the Criminal Code could be invoked to repair the error where there was no substantial wrong or miscarriage of justice - The court stated that "the absence of this specific evidence about the appellant's demeanour from the record does not suggest that a different verdict was reasonably possible" - See paragraphs 50 to 53.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - Gibson was killed during a hotel robbery - A jury found the accused guilty of second degree murder - The accused appealed, complaining about the trial judge's charge on post-offence conduct - The accused contended that the trial judge did not adequately point out to the jury that the existence of another explanation for each of the pieces of post-offence conduct would blunt and neutralize each of them, such that the jury could find that the entire package was worthless - The Alberta Court of Appeal stated that "The trial judge did effectively tell the jury that unless they found the conduct to relate to the murder of Mr. Gibson, it was of no assistance. He specifically told the jury that they had to eliminate the possibility he did this conduct to avoid liability for a robbery. Overall, his instruction amounted to telling the jury that unless they found his actions were to cover up his authorship of Mr. Gibson's death, it was not of assistance. Under the circumstances, and in light of the lack of objection at trial, this complaint is rejected" - See paragraph 54.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - A jury found the accused guilty of second degree murder - The accused appealed, complaining about the trial judge's charge on post-offence conduct - The accused asserted that the Crown arguments that the accused lied during the first police interviews at the time of the murder, and that he lied at the trial, overshot the rule permitting a jury to consider the fact of the falsity of statements by an accused person as evidential makeweight as compared to merely undermining the credibility of the accused's evidence - The Alberta Court of Appeal stated that "The real issue is whether or not, by reason of evidence independent of the proof of the crime itself, it can be shown that the accused made a materially false statement, the occurrence of which could only be explained by an effort to deflect blame for the offence charged ... A false statement is, for this purpose, conduct, not merely disbelieved testimony. The trial judge was present when the cross-examination occurred, and has that great advantage over this court in determining whether a reasonable jury could find that this is not merely disbelieved testimony, but being caught in a provable lie while on the witness stand. ... The trial judge cannot be said to have erred on this point" - See paragraph 55.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See first Criminal Law - Topic 4399.9 and Criminal Law - Topic 5235 ].

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evidence - By Crown - The accused was charged with first degree murder following an undercover sting operation where police officers, posing as members of a criminal organization, recruited the accused to join the organization - Certain details that would only be known to the offender were withheld from the undercover officers in order to maintain the integrity of the operation - The accused provided incriminating details to the undercover officers, including details relating to information that was withheld by police - The accused claimed that he was provided with the incriminating details, including the "holdback evidence", by the undercover officers - The accused was convicted of second degree murder - The accused appealed, challenging the trial judge's ruling which permitted the Crown to call rebuttal evidence regarding the holdback evidence after the defence case closed - The Alberta Court of Appeal dismissed the appeal - The trial judge erred in law in failing to address his mind to the relevant considerations as to admissibility of this evidence - However, that error caused no material prejudice and this was a situation where s. 686(1)(b)(iii) of the Criminal Code could apply (no substantial wrong or miscarriage of justice) - The timing of the rebuttal evidence was not prejudicial in this case - The same evidence, if led in the Crown's case rather than in rebuttal, would have had the same effect - See paragraphs 37 to 43.

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379 ].

Evidence - Topic 511

Presentation of evidence - Rebuttal evidence - Criminal cases - [See Criminal Law - Topic 5235 ].

Cases Noticed:

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 2002 ABCA 310, refd to. [para. 29].

R. v. Goodstoney (G.E.) (2007), 404 A.R. 60; 394 W.A.C. 60; 2007 ABCA 88, leave to appeal denied (2007), 380 N.R. 400 (S.C.C.), refd to. [para. 29].

R. v. Lee (L.L.) (2007), 417 A.R. 331; 410 W.A.C. 331; 2007 ABCA 337, refd to. [para. 29].

R. v. Karas (L.F.) (2007), 422 A.R. 344; 415 W.A.C. 344; 2007 ABCA 362, refd to. [para. 29].

R. v. Rémillard, [2004] 2 S.C.R. 246; 2004 SCC 41, refd to. [para. 31].

R. v. McKinnon (N.L.) et al. (2007), 422 A.R. 265; 415 W.A.C. 265; 2007 ABCA 382, refd to. [para. 32].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 32].

R. v. Rybak (J.) (2008), 236 O.A.C. 166; 233 C.C.C.(3d) 58; 2008 ONCA 354, leave to appeal denied (2009), 394 N.R. 395 (S.C.C.), refd to. [para. 32].

R. v. McCrimmon (D.R.) (2008), 262 B.C.A.C. 193; 441 W.A.C. 193; 2008 BCCA 487, refd to. [para. 32].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97 (C.A.), consd. [para. 33].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334; 94 C.C.C.(3d) 193 (C.A.), leave to appeal denied (1995), 193 N.R. 238; 145 N.S.R.(2d) 80; 418 A.P.R. 80 (S.C.C.), refd to. [para. 34].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 37].

R. v. Dalen (R.) (2009), 264 B.C.A.C.54; 445 W.A.C. 54; 2008 BCCA 530, refd to. [para. 37].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 37].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 37].

R. v. John, [1985] 2 S.C.R. 476; 63 N.R. 141; 11 O.A.C. 391, refd to. [para. 37].

R. v. Biddle (E.R.), [1995] 1 S.C.R. 761; 178 N.R. 208; 79 O.A.C. 128, refd to. [para. 37].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 38].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 43].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 44].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30; 2001 SCC 71, refd to. [para. 47].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379; 2000 SCC 55, refd to. [para. 47].

R. v. Cahill (C.E.) (2006), 384 A.R. 301; 367 W.A.C. 301; 2006 ABCA 119, refd to. [para. 47].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 50].

R. v. Ferris (J.M.), [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [para. 51].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 51].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 52].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 126 C.C.C.(3d) 545 (C.A.), leave to appeal denied (1999), 239 N.R. 193; 123 O.A.C. 199 (S.C.C.), refd to. [para. 55].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 170 C.C.C.(3d) 365 (C.A.), refd to. [para. 55].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161, refd to. [para. 55].

Counsel:

J.A. Antonio, for the respondent;

L.K. Stevens, Q.C., for the appellant.

This appeal was heard on October 7, 2008, before Paperny and Watson, JJ.A., and Phillips, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court and filed on February 27, 2009.