R. v. Clarke, 1981 ABCA 222

• Judge: On September 23, 1981 the judgment of the Court of Appeal was delivered by McCLUNG, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: Wednesday September 23, 1981
• Jurisdiction: Alberta
• Citations: 1981 ABCA 222;63 CCC (2d) 224;(1981), 32 A.R. 92 (CA);[1981] 6 WWR 417;32 AR 92

R. v. Clarke (1981), 32 A.R. 92 (CA)

MLB headnote and full text

R. v. Clarke

(No. 13300)

Indexed As: R. v. Clarke

Alberta Court of Appeal

Clement, McClung, JJ.A. and Crossley, J. (ad hoc)

September 23, 1981.

Summary:

The accused appealed his conviction by a jury on a charge of second degree murder.

The Alberta Court of Appeal allowed the appeal and ordered a new trial. The court stated that the Crown's attempt to bolster the credibility of its main witness and the manner in which this witness's anonymity and the accused's feigned blackout were put to the jury made the conviction unsafe.

Criminal Law - Topic 4952

Appeals - Indictable offences - New trials - Grounds - Conduct by Crown - Character of Crown witness - The Alberta Court of Appeal stated that the Crown's attempt to bolster the credibility of its main witness and the manner in which the witness's anonymity and the accused's feigned blackout were put to the jury made the conviction unsafe - See paragraph 25.

Evidence - Topic 4730

Examination of witness - Impeaching credit - Criminal trial - Presumption of veracity - The Alberta Court of Appeal stated that apart from certain defined exceptions the initiative to raise the issue of character rests solely on the accused - See paragraph 12.

Cases Noticed:

R. v. Boyko (1976), 28 C.C.C.(2d) 193, refd to. [para. 10].

R. v. Martin (1980), 53 C.C.C.(2d) 425, consd. [para. 11].

R. v. Kyselka (1962), 37 C.R. 391, refd to. [para. 13].

R. v. Burkart and Sawatsky, [1965] 3 C.C.C. 210, refd to. [para. 13].

R. v. Eklund (1980), 26 A.R. 202, refd to. [para. 17].

R. v. Podluzney (1950), 1 W.W.R.(N.S.) 85; 98 C.C.C. 354, refd to. [para. 17].

R. v. Kilbourne, [1973] A.C. 729; [1973] 1 All E.R. 440, refd to. [para. 17].

R. v. Long (1902), 5 C.C.C. 493, refd to. [para. 26].

R. v. Demyen (No. 2) (1976), 31 C.C.C.(2d) 383, refd to. [para. 26].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 214(b), sect. 318, sect. 692 [para. 12]; sect. 613(1)(b)(iii) [paras. 26, 27].

Authors and Works Noticed:

Wigmore on Evidence (Chadburn Revision 1972), vol. 4, p. 373 [para. 10].

Counsel:

John E. Faulkner, for the appellant;

M.G. Allen and A.E.F. Piragoff, for the Crown respondent.

This case was heard before CLEMENT, McCLUNG, JJ.A., and CROSSLEY, J. (ad hoc), of the Alberta Court of Appeal.

On September 23, 1981 the judgment of the Court of Appeal was delivered by McCLUNG, J.A.

CLEMENT, J.A. and CROSSLEY, J. (ad hoc), concurred with McCLUNG, J.A.