R. v. Glover (K.J.),

• Judge: Brooker,C,McFadyen
• Neutral Citation: 2003 ABCA 377
• Citation: (2003), 339 A.R. 318 (CA),2003 ABCA 377,339 AR 318,(2003), 339 AR 318 (CA),339 A.R. 318
• Date: 30 October 2003
• Court: Court of Appeal (Alberta)

R. v. Glover (K.J.) (2003), 339 A.R. 318 (CA);

    312 W.A.C. 318

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JA.016

Her Majesty the Queen (respondent) v. Kenneth Jody Glover (appellant)

(0203-0244-A3; 2003 ABCA 377)

Indexed As: R. v. Glover (K.J.)

Alberta Court of Appeal

Côté and McFadyen, JJ.A., and Brooker, J.(ad hoc)

December 23, 2003.

Summary:

The accused was convicted by a jury of aggravated assault and robbery.

The Alberta Court of Queen's Bench, in a decision reported at 318 A.R. 370, sentenced the accused to nine years' imprisonment, given the 19 months he spent in pre-trial custody. He was ineligible for parole for the first half of his sentence. The court imposed a life-time prohibition respecting firearms, etc. and ordered the taking of a DNA sample. The accused appealed his conviction.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury - Direction regarding reasonable doubt - The accused was convicted by a jury of aggra­vated assault and robbery - He appealed, arguing that the trial judge failed to charge the jury properly on reasonable doubt - The accused alleged that the jury were not told expressly that the detailed instructions about reasonable doubt applied equally to questions of credibility, and that they could be unsure of whether to believe a witness, yet still be left in doubt by his or her evidence - The Alberta Court of Appeal rejected the argument - The trial judge told the jury repeatedly that they had to look at all of the evidence in order to decide - There was a "long good direction" about how to weigh the credibility of witnesses, and it was right after the general dis­cussion of reasonable doubt - Taking even that part of the charge as a whole, the jury would be unlikely to think that credibility was freed from the reasonable doubt test - See paragraphs 9 and 10.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury - Directions regarding similar fact evidence -The accused was convicted by a jury of aggravated assault and robbery - He appealed, arguing that the trial judge's charge did not tell the jury what was the proper way to use similar fact evidence, and did not tell them how not to use it, nor warn them of forbidden reasoning as to mere propensity or disposition - The Alberta Court of Appeal rejected the argu­ment - It was true that the charge did that only indirectly and very briefly - However, the trial judge told the jury expressly that they were not trying the accused for the past incident - The only live issue in the trial was the identification of the man who directed and aided the assault - The similar fact evidence was expressly admitted on the identification issue, not to prove that the assault and robbery were committed - The forbidden reasoning from disposition or inclination was more difficult to use and less likely to occur to a jury where the crime was undoubted and where the only issue was whether someone else committed it - That was even more so where, as here the accused had the best chance to commit it, and it would be a significant coinci­dence had someone else committed it - See paragraphs 20 to 23.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - The accused was convicted by a jury of aggra­vated assault and robbery - He appealed, arguing that, Crown counsel's reference in his jury address to a defence suggestion as a "red herring" was inflammatory - The Alberta Court of Appeal rejected the argu­ment - "Red herring" was used in contem­poraneous speech to refer to a topic which has no substantial relevance, and tended to distract one - Whatever its origin, the phrase no longer referred to fox hunting or to deliberate trickiness - It was used by lawyers and judges all the time, in perfect­ly civil discussion - One desiring to inflame the passions of average Albertans would have to resort to very different techniques than using that phrase - See paragraphs 52 and 53.

Words and Phrases

Red herring - The Alberta Court of Appeal discussed the contemporary mean­ing of this phrase when used by lawyers and judges - See paragraph 53.

Cases Noticed:

R. v. Chan (1989), 100 A.R. 133; 70 Alta. L.R.(2d) 364; 52 C.C.C.(3d) 184 (C.A.), leave to appeal denied (1990), 107 N.R. 280; 107 A.R. 160 (S.C.C.), refd to. [para. 9].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 9].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [para. 15].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 15].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 55 C.C.C.(3d) 1, refd to. [para. 16].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321, refd to. [para. 16].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 1 C.R.(6th) 203, refd to. [para. 16].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161, refd to. [para. 16].

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; 113 C.C.C.(3d) 1, refd to. [para. 24].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 2 Alta. L.R.(4th) 213 (C.A.), refd to. [para. 30].

R. v. Wang (J.) et al. (2001), 144 O.A.C. 115; 153 C.C.C.(3d) 321 (C.A.), refd to. [para. 31].

R. v. C.B. (2003), 167 O.A.C. 264; 171 C.C.C.(3d) 159; 7 C.R.(6th) 3 (C.A.), refd to. [para. 34].

R. v. Haynes (K.J.) (1997), 100 B.C.A.C. 40; 163 W.A.C. 40; 121 C.C.C.(3d) 1 (C.A.), refd to. [para. 45].

Counsel:

P.J. Royal, Q.C., for the appellant;

A.R. Schlayer, for the respondent.

This appeal was heard on October 30, 2003, before Côté and McFadyen, JJ.A., and Brooker, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on December 23, 2003.