R. v. Reid (A.E.) et al., (2013) 556 A.R. 272

• Judge: Picard, McDonald and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 29, 2012
• Citations: (2013), 556 A.R. 272;2013 ABCA 289

R. v. Reid (A.E.) (2013), 556 A.R. 272; 584 W.A.C. 272 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.086

Her Majesty the Queen (respondent) v. Adam Michael Brown (appellant)

(1103-0004-A)

Her Majesty the Queen (respondent) v. Alexander Edward Reid (appellant)

(1103-0009-A; 2013 ABCA 289)

Indexed As: R. v. Reid (A.E.) et al.

Alberta Court of Appeal

Picard, McDonald and O'Ferrall, JJ.A.

August 23, 2013.

Summary:

The Alberta Court of Queen's Bench, in a decision reported at [2010] A.R. Uned. 865, found Reid and Brown guilty of charges of second degree murder and assault with a weapon. Reid and Brown appealed their convictions.

The Alberta Court of Appeal dismissed Brown's appeal and allowed Reid's appeal. The conviction entered against Reid was set aside and a new trial was ordered.

Criminal Law - Topic 4297

Procedure - Trial judge - Duties and functions of - Duty to consider theory of the defence - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Reid and Brown were convicted as co-accused on charges of second degree murder and assault with a weapon - Each appealed his convictions - Brown's counsel submitted that without the recorded KGB statement of Sanders (a friend of both Reid and Brown), there would be no basis on which to find Brown guilty of the charges in question - Brown's counsel argued that the trial judge erred by not issuing himself a Vetrovec warning in assessing Sanders' testimony - The Alberta Court of Appeal held that this argument was without merit - The trial judge, as he was entitled to, found Sanders' KGB statement to be reliable - His decision on this point was entitled to considerable deference - Having found all of Sanders' KGB statement to be reliable, the only reasonable inference was that Brown was a shooter rather than a mere bystander - See paragraphs 40 to 44.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Reid and Brown were convicted as co-accused on charges of second degree murder and assault with a weapon - The charges arose from the shooting of two men at a casino - Reid and Brown each appealed his convictions - At trial, Reid's counsel had argued that the testimony of two security personnel raised a reasonable doubt as to whether Reid was the shooter - Specifically, the two security personnel seemed to have identified another individual, who was referred to as "the runner", as being the actual shooter - The theory of Reid's defence was that it was "the runner", and not Reid, who was the shooter - However, the trial judge's reasons did not advert to that theory - The Alberta Court of Appeal stated that "while the trial judge's reasons did seize upon 'the substance of the matter' as it relates to the Crown's case against Brown, the same cannot be said with respect to the case against Reid. Nowhere did the trial judge deal with the theory being advanced by Reid's counsel that the testimony of the two security guards raised a reasonable doubt regarding his client's guilt. Rather the trial judge dismissed their testimony in a very summary fashion. ... The evidence of the security guards had the potential to exonerate Reid ... the trial judge erred in not reviewing this central theory of Reid's defence. Accordingly, we allow Reid's appeal on this ground, set aside the conviction and order that there be a new trial" - See paragraphs 47 to 59.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - Reid and Brown were convicted as co-accused on charges of second degree murder and assault with a weapon - Each appealed his convictions - Brown argued that the trial judge made several misapprehensions of the evidence - The Alberta Court of Appeal held that any errors in fact finding made by the trial judge as they related to Brown were neither material nor did they play any central part in the trial judge's reasoning process for his conviction of Brown - Further, the Supreme Court of Canada held in R. v. Noble that an appellate court could take the silence of an accused into account when miscarriage of justice was alleged and in applying the curative provisions under s. 686(1)(b)(iii) of the Criminal Code - Brown did not testify at trial - The court found no merit to this ground of appeal - See paragraphs 32 to 46.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4866 ].

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - [See Criminal Law - Topic 4354 ].

Cases Noticed:

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 6].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 29].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 30].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 31].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 37].

R. v. Devine (R.A.) (2007), 404 A.R. 81; 394 W.A.C. 81; 2007 ABCA 49, refd to. [para. 41].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 136 D.L.R.(3d) 89, refd to. [para. 42].

R. v. M.R.W. (2013), 544 A.R. 61; 567 W.A.C. 61; 2013 ABCA 56, refd to. [para. 42].

R. v. Snyder (K.) (2011), 278 O.A.C. 233; 273 C.C.C.(3d) 211; 2011 ONCA 445, refd to. [para. 42].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 146 D.L.R.(4th) 385, refd to. [para. 45].

R. v. Starr (1972), 4 N.B.R.(2d) 654; 7 C.C.C.(2d) 519 (C.A.), refd to. [para. 45].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 52].

R. v. Bisaro (L.) (2010), 477 A.R. 385; 483 W.A.C. 385; 2010 ABCA 90, refd to. [para. 57].

Counsel:

T.L. Couillard, for the respondent;

B.A. Beresh, Q.C., for the appellant, Brown;

R. Claus and D.J. Song, for the appellant, Reid.

This appeal was heard on November 29, 2012, before Picard, McDonald and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The Court of Appeal filed the following memorandum of judgment on August 23, 2013.