R. v. Ferris (J.M.), (1994) 149 A.R. 1 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: January 11, 1994
• Citations: (1994), 149 A.R. 1 (CA);1994 ABCA 20;149 AR 1;27 CR (4th) 141;[1994] AJ No 19 (QL);22 WCB (2d) 265;63 WAC 1

R. v. Ferris (J.M.) (1994), 149 A.R. 1 (CA);

         63 W.A.C. 1

MLB headnote and full text

Her Majesty The Queen (respondent) v. John Michael Ferris (appellant)

(Appeal No. 9103-0712-A5)

Indexed As: R. v. Ferris (J.M.)

Alberta Court of Appeal

McClung and Conrad, JJ.A., and

Picard, J.(ad hoc)

January 11, 1994.

Summary:

The accused was convicted of murder. Following a voir dire, a police officer testified overhearing the accused state "I killed David". The words were preceded and followed by additional conversation. The evidence was ruled admissible. The accused appealed on the ground that, inter alia, the trial judge erred in admitting into evidence an incomplete verbal utterance. The accused also submitted that once the statement was admitted, the trial judge incorrectly instructed the jury on the use of the statement.

The Alberta Court of Appeal, McClung, J.A., dissenting, allowed the appeal and ordered a new trial. The court held that the incomplete statement was not logically probative of a fact in issue, was not relevant and was, accordingly, inadmissible and should not have been left with the jury.

Criminal Law - Topic 4352

Procedure - Jury charge - Direction on evidence generally - A trial judge improperly admitted a partial verbal statement that was not relevant - Police overheard the accused say "I killed David", but did not hear the words before and after the statement - Accordingly, if could not be determined whether the partial statement was in fact an admission - The Alberta Court of Appeal held that if the evidence was admissible, the jury was not properly instructed to first determine whether the statement constituted a complete thought and admission - At a minimum, the trial judge should have reviewed the evidence, highlighted its weaknesses and warned of the danger of attributing meaning to the words - It was error to instruct the jury only to determine whether the accused spoke the words and the weight to be attached to them - Additionally, the incomplete statement was evidence of actus reus only; the trial judge erred in treating the words as evidence of intention - See paragraphs 41 to 53.

Criminal Law - Topic 4356

Procedure - Jury charge - Directions re intent or mens rea - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5202

Evidence - Witnesses - Admissibility - Whether relevant and material - An accused charged with murder called his father - Police overheard the accused state "I killed David", but did not hear the words spoken before and after the statement - The Alberta Court of Appeal held that the incomplete statement had no discernable meaning, was therefore not relevant and should not have been admitted in evidence - The words may have been part of complete statements such as "You don't think I killed David" or "They think I killed David but I didn't" - The incomplete statement was not probative of a fact in issue - The only possible relevance was as an admission, however, there was no way of determining the meaning attributable to the statement - Admitting the statement would result in a highly prejudicial assumption that it was an admission - See paragraphs 1 to 31.

Criminal Law - Topic 5216

Evidence - Witnesses - Burden of proof - On Crown - The Crown sought to admit a partial verbal utterance by the accused as an admission, without knowing the words preceding and following the statement - The Alberta Court of Appeal stated that "it is essential that the inculpatory nature of those words be proven beyond a reasonable doubt before that fact can be given any weight" - See paragraphs 38 to 40.

Criminal Law - Topic 5259

Evidence - Witnesses - Admissions - What constitute - [See Criminal Law - Topic 5202 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and reliable - The accused was charged with murder - Police overheard the accused state "I killed David", but did not hear the words spoken before and after that statement - The Crown claimed the hearsay statement was admissible where it was necessary and reliable - The Alberta Court of Appeal held that the incomplete statement was not admissible - The statement was not "reliable" where its meaning could not be determined (i.e., whether in fact it was an admission) - The statement was not "necessary", where the Crown could have called the known recipient of the statement for an accurate account of the complete conversation - Further, the extreme prejudice of admitting the alleged admission was so great that it justified exclusion - See paragraphs 32 to 37.

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 12].

R. v. Cloutier (1979), 28 N.R. 1; 48 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 14].

R. v. Evans (C.D.) (1993), 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81 (S.C.C.), refd to. [para. 16].

Capital Trust Corp. v. Fowler (1921), 64 D.L.R. 289 (Ont. C.A.), refd to. [para. 23].

R. v. Howard and Trudel (1983), 3 C.C.C.(3d) 399 (Ont. C.A.), dist. [para. 25].

R. v. Kennealy (1972), 6 C.C.C.(2d) 390 (B.C.C.A.), dist. [para. 25].

R. v. Lessard (1982), 10 C.C.C.(3d) 61 (Que. C.A.), dist. [para. 25].

R. v. Smith (1981), 60 C.C.C.(2d) 327 (Que. S.C.), refd to. [para. 28].

R. v. Khan (1990), 113 N.R. 53; 41 O.A.C. 353 (S.C.C.), refd to. [para. 33].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 33].

R. v. Mackenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 39].

R. v. Colpitts, [1965] S.C.R. 739, refd to. [para. 55].

R. v. Gauthier, [1977] 1 S.C.R. 441; 10 N.R. 373, refd to. [para. 69].

R. v. Reburn (1981), 24 A.R. 168; 55 C.C.C.(2d) 419 (C.A.), leave to appeal refused 43 N.R. 539; 37 A.R. 179 (S.C.C.), refd to. [para. 69].

R. v. Park, [1981] 2 S.C.R. 64; 37 N.R. 501, refd to. [para. 70].

R. v. Burdett (1820), 4 B. & Ald. 95; 106 E.R. 873, refd to. [para. 73].

R. v. Arndt, Brooks, Harvey and Stefiuk (1981), 11 Man.R.(2d) 389; 61 C.C.C.(2d) 268 (Co. Ct.), refd to. [para. 78].

R. v. Wray, [1971] S.C.R. 272; [1970] 4 C.C.C. 1; 11 D.L.R.(3d) 673, refd to. [para. 79].

R. v. Duke (1985), 62 A.R. 204; 22 C.C.C.(3d) 217 (C.A.), refd to. [para. 92].

Statutes Noticed:

Canadian Charter of Rigths and Freedoms, 1982, generally [para. 79].

Authors and Works Noticed:

Kaufman, J.A., The Admissibility of Confessions (3rd Ed. 1979), generally [para. 78].

Wigmore on Evidence, vol. 7, pp. 595 [para. 19]; 601 [para. 20]; 604 [para. 21].

Counsel:

J. Watson, for the respondent;

M.T. Duckett, for the appellant.

This appeal was heard before McClung and Conrad, JJ.A., and Picard, J.(ad hoc), of the Alberta Court of Appeal.

On January 11, 1994, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Conrad, J.A. (Picard, J.(ad hoc), concurring) - see paragraphs 1 to 57;

McClung, J.A., dissenting - see paragraphs 58 to 100.