R. v. Groves (C.), 2013 BCCA 446

• Judge: Lowry, Frankel and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 16, 2013
• Jurisdiction: British Columbia
• Citations: 2013 BCCA 446;(2013), 344 B.C.A.C. 181 (CA)

R. v. Groves (C.) (2013), 344 B.C.A.C. 181 (CA);

    587 W.A.C. 181

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. OC.035

Regina (respondent) v. Christopher Groves (appellant)

(CA039544; 2013 BCCA 446)

Indexed As: R. v. Groves (C.)

British Columbia Court of Appeal

Lowry, Frankel and MacKenzie, JJ.A.

October 16, 2013.

Summary:

Christopher Groves was charged with manslaughter in Ariana Simpson's death. There was conflicting evidence respecting whether Groves, who testified in his own defence, was the person who pushed Simpson under a moving transit bus. No one who saw Simpson being pushed could identify the pusher other than by describing such things as that person's clothing, height, etc. Nicolas Emerson, who was called by the Crown, was unable to recall what happened on the night in question. However, the trial judge admitted as evidence a videotaped statement he gave to the police shortly after the events. In that statement, Emerson gave a description of the pusher consistent with that person being Groves. The judge also admitted a statement Groves made when he was arrested shortly after the incident. A police officer interviewed Groves the day after the incident. The Crown did not tender that statement as evidence but used passages from it in cross-examining Groves. The transcript of the interview was not marked as an exhibit. The trial judge instructed the jury that it could use the passages referred to in cross-examination in considering whether Groves was guilty or innocent. The jury convicted Groves. Groves appealed, submitting that: (1) the trial judge erred in admitting both the statement he made shortly after his arrest and Emerson's videotaped statement; (2) the judge erred in not making the transcript of the statement he made the next day an exhibit and in not instructing the jury that the passages of that statement referred to during his cross-examination could only be used to assess his credibility; and (3) the jury's verdict was unreasonable.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - See paragraphs 33 to 45.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - See paragraphs 69 to 75.

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - See paragraphs 69 to 75.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - See paragraphs 19 to 32.

Criminal Law - Topic 5433.2

Evidence and witnesses - Cross-examination of accused - Prior inconsistent statements - See paragraphs 33 to 45.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - See paragraphs 46 to 68.

Evidence - Topic 4751

Witnesses - Examination - Prior inconsistent statements - Use of and effect of use of - See paragraphs 33 to 45.

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 17].

R. v. Whittle, [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 92 C.C.C.(3d) 11, refd to. [para. 24].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 24].

R. v. Rodney (1988), 46 C.C.C.(3d) 323; 33 B.C.L.R.(3d) 280 (C.A.), affd. [1990] 2 S.C.R. 687; 112 N.R. 167, refd to. [para. 37].

R. v. Larue (1991), 65 C.C.C.(3d) 1 (B.C.C.A.), refd to. [para. 37].

R. v. McKerness (D.) (2007), 225 O.A.C. 134; 2007 ONCA 452, refd to. [para. 40].

R. v. Mannion, [1986] 2 S.C.R. 272; 69 N.R. 189; 75 A.R. 16, refd to. [para. 43].

R. v. Tran (H.D.) (1999), 129 B.C.A.C. 277; 210 W.A.C. 277; 1999 BCCA 535, refd to. [para. 44].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 49].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 49].

R. v. Post (D.F.) (2007), 237 B.C.A.C. 208; 392 W.A.C. 208; 66 B.C.L.R.(4th) 148; 217 C.C.C.(3d) 225; 2007 BCCA 123, leave to appeal denied [2007] 3 S.C.R. xiii; 376 N.R. 400; 245 O.A.C. 398, refd to. [para. 56].

R. v. T.G.N. (2007), 234 B.C.A.C. 148; 387 W.A.C. 148; 216 C.C.C.(3d) 329; 2007 BCCA 2, refd to. [para. 60].

R. v. James (R.) (2011), 287 O.A.C. 18; 2011 ONCA 839, refd to. [para. 62].

R. v. P.G., [2011] O.A.C. Uned. 29; 2011 ONCA 50, refd to. [para. 65].

R. v. Youvarajah (Y.) (2013), 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 67].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 297 C.C.C.(3d) 4; 2013 SCC 22, folld. [para. 72].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), § 8.169 [para. 42].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), §§ 8.104, 16.134 [para. 42].

Counsel:

R.C. Claus and D.J. Song, for the appellant;

B.A. Martland, for the respondent.

This appeal was heard at Vancouver, B.C., by Lowry, Frankel and MacKenzie, JJ.A., of the British Columbia Court of Appeal. Frankel, J.A., delivered the following decision for the court on October 16, 2013.