R. v. Brown (B.D.), 2015 ABCA 228

• Judge: Paperny, Martin and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Tuesday March 10, 2015
• Citations: 2015 ABCA 228;(2015), 602 A.R. 349

R. v. Brown (B.D.) (2015), 602 A.R. 349; 647 W.A.C. 349 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.078

Her Majesty the Queen (respondent) v. Barry David Brown (appellant)

(1301-0068-A; 2015 ABCA 228)

Indexed As: R. v. Brown (B.D.)

Alberta Court of Appeal

Paperny, Martin and McDonald, JJ.A.

July 15, 2015.

Summary:

Brown was convicted of first-degree murder following a trial by judge and jury. He appealed the conviction, challenging various rulings made by the trial judge and aspects of his charge to the jury.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4369

Procedure - Charge or directions - Jury or judge alone - Directions regarding motive or design - Brown appealed his conviction for first degree murder, arguing that the trial judge's instructions to the jury regarding motive were insufficient - The Alberta Court of Appeal stated that "We have reviewed the trial judge's instructions regarding motive. It followed the instructions found in specimen jury charges, modified to accommodate the circumstances of this case. It met with the approval of trial counsel, both Crown and defence, who were given an opportunity to comment on the charge before and after it was delivered. The appellant now offers suggestions that in his opinion would have made these instructions even better. ... We think the charge as it related to motive was correct and fair, and even if the trial judge could have said more on this issue, his failure to do so does not amount to a legal error" - See paragraphs 44 to 47.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - Following a trial by judge and jury, Brown was convicted of the first-degree murder of Belanger - Brown appealed - He argued that the trial judge failed to consider whether the probative value outweighed the prejudicial effect before admitting hearsay evidence - The Alberta Court of Appeal stated that "... the impugned evidence was relevant and logically probative of a fact in issue and while it may have been prejudicial to the character of Vollmin [Belanger's common law husband], it had no such impact on the character of the appellant. Also, it took relatively little time to introduce. Finally, the record discloses the trial judge was mindful of this test ..." - See paragraphs 42 to 43.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (third party suspects) - Following a trial by judge and jury, Brown was convicted of the first-degree murder of Belanger - Brown appealed - One argument referred to three gloves found "in the general vicinity" of Belanger's home during an area search after the killing - Two of the gloves were knit, child size and very dirty - They were not a matching pair - One was found in a back alley, the other in a nearby park - The third, a latex glove, was also found in the nearby park - The Alberta Court of Appeal stated that "The issue before the trial judge was whether the evidence of the gloves was admissible under what was referred to as the 'third suspect rule.' Not surprisingly, the trial judge ruled the gloves were not admissible, finding there was no connection between them and the homicide. That ruling is unassailable" - See paragraphs 56 to 60.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions (incl. lack of confession) - Brown appealed his conviction for first-degree murder - He argued that the trial judge erred in excluding evidence that Brown made no incriminating statements to police during a Mr. Big operation - The Alberta Court of Appeal stated that "Mindful of the information before the trial judge on this issue, the ruling is unassailable. We are not aware of authority which allows an accused who does not intend to testify to introduce, at trial, out-of-court statements wherein he has asserted his innocence (except perhaps res gestae statements) and counsel has not referred us to any such authority. There is good reason for this. If the law were to allow this kind of self-serving evidence at the instance of an accused, he or she could plant a defence in statements to others and then introduce those statements at trial without having to assert that evidence under oath and subject to cross-examination" - See paragraphs 52 to 55.

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - [See Criminal Law - Topic 5496 ].

Criminal Law - Topic 5496

Evidence and witnesses - Motive or design - Relevance - Following a trial by judge and jury, Brown was convicted of the first-degree murder of Belanger - Brown appealed, alleging errors relating to hearsay evidence admitted at trial - The essence of that evidence, which was introduced through friends and workmates of Belanger, was to establish that: i) Belanger's relationship with Vollmin (a friend of Brown) was coming to an end; ii) Vollmin had become confrontational and violent with Belanger, and had threatened to kill her; iii) the couple had been arguing over parenting their son; iv) Belanger had told Vollmin before he left for his last long distance trip with their child that she would be seeking custody of him, and v) Belanger disliked Vollmin's friends and had an aversion to guns - Brown argued that the trial judge erred in finding evidence supporting a motive for Vollmin to kill Belanger relevant to the issue of whether Brown was the offender - The Alberta Court of Appeal stated that "when viewed in context, the impugned evidence was relevant and probative. If it was at all prejudicial to the appellant, it was only marginally so. It was clearly admissible to establish a link between Vollmin's deteriorating relationship with Ms. Belanger, his communications with the appellant, and the death of Ms. Belanger. As the trial judge concluded: 'There is a reasonable basis at this stage of determining admissibility for concluding that, to the extent Mr. Vollmin may have had a motive for the murder of Ms. Belanger, Mr. Brown may have shared in that motive by virtue of their close connections and relationship'" - See paragraphs 29 to 36.

Criminal Law - Topic 5528

Evidence and witnesses - Testimony respecting the victim - Character of victim - Following a trial by judge and jury, Brown was convicted of the first-degree murder of Belanger - Brown appealed - He argued that the trial judge erred in finding evidence of the deceased's good character relevant - Brown complained that evidence of the deceased being a good mother and housekeeper, and a devoutly religious person who went to bed early every night, established her good character, while casting Vollmin (Belanger's common law husband and Brown's friend) as an abusive partner, poor father, and an overall despicable person - The Alberta Court of Appeal stated that "That may be a valid summary of the evidence, but it was relevant and not prejudicial to the appellant. None of this evidence reflected on his character, good or bad. It was he, and not Vollmin, who was on trial. In a related argument, the appellant challenges the admissibility of evidence tendered by a close friend of Ms. Belanger's that she (Ms. Belanger) disliked Vollmin's friends and had an aversion to guns. That evidence took on particular significance in light of the appellant's statement to the police, that, without Vollman's knowledge, he had been in contact with Ms. Belanger and the two were engaged in the illegal trafficking of handguns. It was only on this basis that the trial judge ruled the evidence admissible. We agree with that ruling. ... As Ms. Belanger was unable to give that evidence, the test for admissibility was met" - See paragraphs 39 to 40.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - [See Criminal Law - Topic 5337.1 ].

Evidence - Topic 1626

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - General principles - [See Criminal Law - Topic 5528 ].

Evidence - Topic 1631.1

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased person - State of mind - [See Evidence - Topic 1670 ].

Evidence - Topic 1670

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements by victim - Following a trial by judge and jury, Brown was convicted of the first-degree murder of Belanger - Brown appealed - He argued that the trial judge erred in admitting "double hearsay" statements of Vollmin (Belanger's common law husband and Brown's friend) - The argument focussed on statements Belanger made to friends that Vollmin had threatened to kill her - The Crown had relied on this evidence as demonstrative of Belanger's state of mind and Vollmin's animus toward her - The Alberta Court of Appeal did not agree that this evidence was not admissible - It could have been given by Belanger, had she survived the attack - If there was a technical impediment to the admission of this evidence, it was a harmless error - See paragraphs 37 to 38.

Cases Noticed:

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 26].

R. v. Daley - see R. v. W.J.D.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 27].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 27].

R. v. Gray (B.F.) (2012), 522 A.R. 374; 544 W.A.C. 374; 2012 ABCA 51, refd to [para. 27].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 28].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 34].

R. v. Candir (E.) (2009), 257 O.A.C. 119; 250 C.C.C.(3d) 139; 2009 ONCA 915, refd to. [para. 34].

R. v. Mack (D.R.), [2014] 3 S.C.R. 3; 462 N.R. 380; 580 A.R. 41; 620 W.A.C. 41; 2014 SCC 58, refd to. [para. 47].

R. v. Wood et al. (1989), 33 O.A.C. 260; 51 C.C.C.(3d) 201 (C.A.), refd to. [para. 53].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 53].

R. v. Grant (M.E.) (2015), 468 N.R. 83; 315 Man.R.(2d) 259; 630 W.A.C. 259; 17 C.R.(7th) 229; 2015 SCC 9, refd to. [para. 60].

Counsel:

M. Hayes-Richards, for the respondent;

J. Ruttan, for the appellant.

This appeal was heard on March 10, 2015, before Paperny, Martin and McDonald, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on July 15, 2015.