R. v. Reid (A.E.) et al., 2016 ABCA 192
| Judge | Berger, McDonald and Bielby, JJ.A. |
| Court | Court of Appeal (Alberta) |
| Case Date | May 06, 2016 |
| Citations | 2016 ABCA 192;[2016] A.R. TBEd. JN.086 |
R. v. Reid (A.E.), [2016] A.R. TBEd. JN.086
MLB being edited
Currently being edited for A.R. - judgment temporarily in rough form.
Temp. Cite: [2016] A.R. TBEd. JN.086
Her Majesty the Queen (respondent) v. Adam Michael Brown (appellant)
(1103-0004-A; 2016 ABCA 192)
Indexed As: R. v. Reid (A.E.) et al.
Alberta Court of Appeal
Berger, McDonald and Bielby, JJ.A.
June 23, 2016.
Summary:
Brown and Reid were convicted of the second degree murder of Ibrahim and of assault with a weapon on Omar. Both appealed their convictions.
The Alberta Court of Appeal dismissed Brown's appeal. Reid's appeal was successful and a new trial was ordered for Reid (see 556 A.R. 272; 584 W.A.C. 272). Reid was subsequently acquitted. Brown applied for leave to appeal the dismissal of his conviction appeal to the Supreme Court of Canada, and applied to adduce new evidence in support of that appeal. The new evidence was found in testimony given by Sahal during Reid's retrial and in two statements given by Sahal to the police in 2011 but not disclosed to Brown until late 2013, after his appeal to the Court of Appeal had been dismissed. Sahal was an eyewitness to the shooting incident. His statements, or parts of them, offered evidence which suggested Brown was not one of the shooters.
The Supreme Court of Canada issued the following judgment "The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for leave to adduce new evidence is granted. The application for leave to appeal from the judgment of the Court of Appeal of Alberta ... is remanded to the Court of Appeal for Alberta for consideration of the new evidence and whether the applicant's convictions constitute a miscarriage of justice".
The Alberta Court of Appeal admitted the new evidence and concluded that to permit Brown's convictions to stand in the face of that new evidence would constitute a miscarriage of justice contrary to s. 686(1)(a)(iii) of the Criminal Code. The court set aside the convictions and ordered a new trial. McDonald, J.A., dissenting, would have rejected the application to adduce new evidence.
Criminal Law - Topic 4949
Appeals - Indictable offences - New trials - Grounds - New evidence - [See second Criminal Law - Topic 4970 ].
Criminal Law - Topic 4970
Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Alberta Court of Appeal dismissed Brown's appeal from convictions for second degree murder and assault with a weapon - Brown applied for leave to appeal the dismissal of his conviction appeal to the Supreme Court of Canada, and applied to adduce new evidence in support of that appeal - The Supreme Court of Canada issued the following judgment "The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for leave to adduce new evidence is granted. The application for leave to appeal from the judgment of the Court of Appeal of Alberta ... is remanded to the Court of Appeal for Alberta for consideration of the new evidence and whether the applicant's convictions constitute a miscarriage of justice" - The Alberta Court of Appeal stated that "The Supreme Court did not thus adjudicate upon the fresh evidence application for the purposes of the appeal proper. It directed that the case be remanded to this Court for consideration of the fresh evidence and whether the convictions ought to be set aside on the basis of a miscarriage of justice. We are of the view that the Supreme Court's directions require that this Court consider the admissibility of the fresh evidence in order to determine whether or not the appellant's convictions do constitute a miscarriage of justice. ... In summary, we conclude that the judgment from the Supreme Court of Canada remanded the issue of the admission of new evidence on this appeal to us" - See paragraphs 6 to 8.
Criminal Law - Topic 4970
Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Brown and Reid were convicted of the second degree murder of Ibrahim and of assault with a weapon on Omar - Both appealed their convictions - The Alberta Court of Appeal dismissed Brown's appeal - Reid's appeal was successful and a new trial was ordered for Reid - Reid was subsequently acquitted - Brown applied for leave to appeal the dismissal of his conviction appeal to the Supreme Court of Canada, and applied to adduce new evidence in support of that appeal - The new evidence was found in testimony given by Sahal during Reid's retrial and in two statements given by Sahal to the police in 2011 but not disclosed to Brown until late 2013, after his appeal to the Court of Appeal had been dismissed - One of those statements was audio-recorded but unsworn - The second ("the KGB statement") was sworn and video-recorded - Sahal was an eyewitness to the shooting incident - His statements, or parts of them, offered evidence which suggested Brown was not one of the shooters - The Supreme Court of Canada issued the following judgment "The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for leave to adduce new evidence is granted. The application for leave to appeal from the judgment of the Court of Appeal of Alberta ... is remanded to the Court of Appeal for Alberta for consideration of the new evidence and whether the applicant's convictions constitute a miscarriage of justice" - The Alberta Court of Appeal held that the criteria in R. v. Palmer were met and the new evidence should be admitted on the appeal - The court concluded that to permit Brown's convictions to stand in the face of that new evidence would constitute a miscarriage of justice contrary to s. 686(1)(a)(iii) of the Criminal Code - The court set aside the convictions and ordered a new trial - See paragraphs 23 to 42.
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 second Criminal Law - Topic 4970 ].
Counsel:
T.L. Couillard, for the respondent;
D.J. Song, for the appellant.
This appeal was heard on May 6, 2016, before Berger, McDonald and Bielby, JJ.A., of the Alberta Court of Appeal. The memorandum of judgment of the Court of Appeal was delivered on June 23, 2016, including the following opinions:
Berger and Bielby, JJ.A. - see paragraphs 1 to 42;
McDonald, J.A., dissenting - see paragraphs 43 to 71.
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