R. v. Oakes (C.J.), (2016) 616 A.R. 234

• Judge: McDonald, Bielby and Schutz, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 12, 2016
• Citations: (2016), 616 A.R. 234;2016 ABCA 90

R. v. Oakes (C.J.) (2016), 616 A.R. 234; 672 W.A.C. 234 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. AP.017

Her Majesty the Queen (respondent) v. Connie Jean Oakes (appellant)

(1401-0153-A; 2016 ABCA 90)

Indexed As: R. v. Oakes (C.J.)

Alberta Court of Appeal

McDonald, Bielby and Schutz, JJ.A.

April 6, 2016.

Summary:

The accused was convicted by a jury of second degree murder of Armstrong. She appealed her conviction, and sought to introduce fresh evidence on appeal. She claimed that her conviction was a result of a miscarriage of justice contrary to s. 686(1)(a)(iii) of the Criminal Code.

The Alberta Court of Appeal, McDonald, J.A., dissenting, allowed the application to admit fresh evidence in part, allowed the appeal and ordered a new trial. The conviction was set aside because the fresh evidence demonstrated that a miscarriage of justice would result if the accused's conviction was allowed to stand.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - The accused (Oakes) was convicted by a jury of second degree murder of Armstrong - The conviction was based on the identification evidence of a single witness (Scott), who had previously pled guilty to the second degree murder of Armstrong and was serving a resulting life sentence by the time she testified at Oakes' trial - Scott had entered that plea in exchange for the Crown agreeing to withdraw a charge of first-degree murder against her - After Oakes was convicted, the Court of Appeal overturned Scott's conviction and ordered a retrial - Oakes appealed her conviction, claiming a miscarriage of justice (Criminal Code, s. 686(1)(a)(iii)) - She sought to introduce fresh evidence (i.e., the setting aside of Scott's conviction) - The Alberta Court of Appeal allowed the application to introduce the fresh evidence and held that the fresh evidence supported the court's conclusion that there had been a miscarriage of justice - The court ordered a new trial - See paragraphs 12 to 60.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - An accused appealed a second degree murder conviction, claiming that fresh evidence established that there had been a miscarriage of justice contrary to s. 686(1)(a)(iii) of the Criminal Code - She claimed that the proper remedy was a directed verdict of acquittal - The Alberta Court of Appeal admitted the fresh evidence, allowed the appeal and ordered a new trial - The court noted that where an appellate court admitted fresh evidence on an appeal from conviction, the court had to quash the conviction and either order a new trial or an acquittal - However, the court rejected the accused's request for an acquittal in this case, noting that the general rule was that it was appropriate to order a new trial upon finding a miscarriage of justice, unless no properly instructed trier of fact could reasonably have convicted the accused - That was not the case here - Even considering the fresh evidence, the court did not conclude that it would be unreasonable for a future jury to do anything but acquit - See paragraphs 12 to 59.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - The Alberta Court of Appeal discussed the standard of review on an appeal from a criminal verdict where there was a fresh evidence - See paragraphs 9 to 11.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Criminal Law - Topic 4852 ].

Criminal Law - Topic 4989

Appeals - Indictable offences - Powers of Court of Appeal - Power to allow appeal where miscarriage of justice - [See Criminal Law - Topic 4852 ].

Cases Noticed:

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 9].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Dhillon (G.S.) (2014), 364 B.C.A.C. 112; 625 W.A.C. 112; 324 C.R.R.(2d) 163; 2014 BCCA 480, refd to. [para. 10].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 11].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 18].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 20].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 181 C.C.C.(3d) 1; 2004 SCC 11, refd to. [para. 21].

R. v. Rowe (M.) (2006), 209 O.A.C. 50; 208 C.C.C.(3d) 412 (C.A.), refd to. [para. 24].

R. v. Hart (N.L.), [2014] 2 S.C.R. 544; 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, 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. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [paras. 36, 90].

R. v. Sinobert (C.E.) (2015), 339 O.A.C. 336; 2015 ONCA 691, refd to. [para. 37].

R. v. Pyke (C.A.) (2013), 330 N.S.R.(2d) 158; 1046 A.P.R. 158; 2013 NSCA 61, refd to. [para. 37].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 41].

Reference Re Milgaard, [1992] 1 S.C.R. 866; 135 N.R. 81; 100 Sask.R. 183; 18 W.A.C. 183; 90 D.L.R.(4th) 1, refd to. [para. 44].

R. v. Hay (L.) et al., [2013] 3 S.C.R. 694; 451 N.R. 34; 312 O.A.C. 201; 2013 SCC 61, refd to. [para. 49].

R. v. Reeve (M.) (2008), 236 O.A.C. 92; 233 C.C.C.(3d) 104; 2008 ONCA 340, refd to. [para. 49].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 50].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 50].

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. 50].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161; 19 O.R.(3d) 322, refd to. [para. 54].

R. v. AI. (2010), 505 A.R. 46; 522 W.A.C. 46; 2010 ABCA 375, dist. [para. 76].

R. v. Ibrahim - see R. v. A.I.

R. v. Attfield (G.D.) (2000), 283 A.R. 94; 2000 ABQB 694, refd to. [para. 76].

R. v. D.R.S. (2013), 542 A.R. 92; 566 W.A.C. 92; 2013 ABCA 18, refd to. [para. 76].

R. v. A.R.F. (2007), 412 A.R. 185; 404 W.A.C. 185; 2007 ABCA 64, refd to. [para. 76].

R. v. Fraser (R.C.) (1994), 162 A.R. 170; 83 W.A.C. 170; 2007 ABCA 403, refd to. [para. 76].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(iii) [para. 12].

Counsel:

B.R. Graff, for the respondent;

A.K. Seaman and A. Simic, for the appellant.

This appeal was heard on January 12, 2016, in Calgary, Alberta, before McDonald, Bielby and Schutz, JJ.A., of the Alberta Court of Appeal. The decision of the court was delivered on April 6, 2016, including the following opinions:

Bielby and Schutz, JJ.A. - see paragraphs 1 to 60;

McDonald, J.A., dissenting - see paragraphs 61 to 92.