R. v. Ryan (G.R.), 2014 ABCA 85

• Judge: Berger, Martin and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 28, 2014
• Citations: 2014 ABCA 85;(2014), 569 A.R. 376

R. v. Ryan (G.R.) (2014), 569 A.R. 376; 606 W.A.C. 376 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.005

Her Majesty the Queen (respondent) v. Gerald Robert Ryan (appellant)

(1103-0173-A; 2014 ABCA 85)

Indexed As: R. v. Ryan (G.R.)

Alberta Court of Appeal

Berger, Martin and Bielby, JJ.A.

February 28, 2014.

Summary:

The accused drug dealer admittedly shot and killed the victim. The victim had disappeared with the accused's truck and drugs to sell for the accused. The accused offered to plead guilty to manslaughter on the basis that the shooting was accidental. The Crown rejected the offer. The accused was tried by judge alone and convicted of second degree murder. The trial judge relied heavily on the accused's admission of an intentional killing to undercover police officers in a Mr. Big operation. At trial, the accused conceded the admissibility of the statement. The accused appealed on the grounds that the trial judge erred by: "(i) requiring corroboration for exculpatory evidence; (ii) making an illogical and irrational inference; (iii) holding that Browne v Dunn only concerns cross-examination; (iv) misapprehending Mr. Strong's evidence; (v) relying on immaterial and dependent evidence for corroboration; and (vi) reaching a verdict that is unreasonable and not supported by the evidence.". Subsequently, the accused raised three further grounds of appeal: "(vii) whether the appellant can raise, as a new issue on this appeal, an infringement of his Charter rights; (viii) whether the Mr. Big undercover investigation infringed the appellant's rights as protected by ss 7, 8 or 11(d) of the Charter; and (ix) whether the infringement of the appellant's rights warrants a remedy pursuant to s 24(2) of the Charter.".

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See Criminal Law - Topic 5510 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - The accused was convicted of second degree murder - He admittedly shot and killed the victim, but argued that he was guilty only of manslaughter, as the shooting was accidental - At trial, the accused had admitted that his confession to an intentional killing to undercover police during a Mr. Big operation was admissible - The accused acknowledged that there was no evidence of coercion, no evidence that he had been threatened in any way by the undercover police, and no basis to allege that the police conduct was such that it would shock the community - On appeal, the accused now sought to challenge the police conduct as violating various of his Charter rights - The Alberta Court of Appeal stated that "If the appellant wanted to take a different approach, such as the one he is advocating now, he could and should have done so at trial, with notice to the court and the Crown so that the matter could have been decided on all of the relevant evidence. ... an appellate court may entertain a new issue on appeal where the evidentiary record and the interests of justice support making an exception to the general rule. Neither justification is present here. Accordingly, I respectfully decline to consider these arguments further." - See paragraphs 70 to 74.

Criminal Law - Topic 5402

Evidence and witnesses - Witnesses - Assessment of - [See Evidence - Topic 4716 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused was convicted of second degree murder - He admittedly shot and killed the victim, but argued that he was guilty only of manslaughter, as the shooting was accidental - The Crown called two witnesses who were drug addicts and friends of the accused - The second witness (Sheppard) gave evidence that was both inculpatory (accused shot victim) and exculpatory (shooting was accidental) - The trial judge looked for, and found, corroboratory evidence for the incriminating portion of Sheppard's evidence, and disbelieved his exculpatory evidence of it being an accident - The Alberta Court of Appeal held that the trial judge did not err - The court stated that "Vetrovec-type cautions are to be given only with respect to unsavoury witnesses called on behalf of the prosecution and relied upon to establish an accused's guilt. A Vetrovec warning is not to be given in relation to defence witnesses ... Such cautions are not to be applied to the testimony of an accused person, or a witness called by the defence ... Exculpatory evidence offered by an accused person or a defence witness is generally to be assessed by the rules enunciated in R v W(D) .... The situation is slightly more complicated where a Crown witness offers testimony which both implicates and exculpates the accused, commonly referred to as a 'mixed witness'. If in regard to such a witness's evidence the court decides that a Vetrovec-type caution is appropriate, care should be taken to ensure that the jury understands that the caution applies to the incriminating portions of that unsavoury witness's testimony, that it does not usually apply to the exculpatory portions of the witness's testimony, and that it is sufficient if the uncorroborated or unconfirmed exculpatory testimony raises a reasonable doubt as to the guilt of the accused. The decision to include a Vetrovec caution and the wording used to convey that message is a matter left to the trial judge's discretion, to be guided by the circumstances of the case and some helpful advice in the case law. ... The foregoing rules, and the jurisprudence which supports them, all refer to jury trials and the instruction to be given in the event that a trial judge decides in his or her discretion that a Vetrovec-type caution is appropriate. The case at bar was tried by a judge alone, so we are not now concerned about the adequacy of a jury instruction. Rather, we must look at the whole of the trial judge's reasons for judgment to see if he fell into error when considering the evidence of the Crown witnesses, Sheppard and Strong." - The trial judge correctly cautioned himself only to the inculpatory portion of the evidence of the two witnesses - The court stated that "the trial judge would only have fallen into error ... if he had mistakenly thought that, as a matter of law, Sheppard's accident scenario required confirmation before the [sic] he could consider whether it raised a reasonable doubt." - See paragraphs 14 to 39.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - The accused was convicted of second degree murder - He admittedly shot and killed the victim, but argued that he was guilty only of manslaughter, as the shooting was accidental - The Crown called two witnesses who were drug addicts and friends of the accused - One of them testified that the accused shot the victim, but that it was an accident - The trial judge disbelieved the accident testimony, finding that the witness falsely testified on that point to assist his friend - The Crown challenged the accident scenario testimony during examination, but did not challenge him on his motive for falsely testifying that it was an accident - The accused argued that by failing to do so, the Crown infringed the rule in Browne v. Dunn - The Alberta Court of Appeal rejected the argument - The court stated that "there is a duty on counsel to bring the attention of the witness to facts which may contradict the witness's testimony. The rule does not, however, stand for the proposition that a trial judge must accept as true the evidence of a witness, merely because the witness was not cross-examined on a particular point. ... In the final analysis, [the witness] was put on notice by the prosecutor in direct examination that the Crown did not believe any part of the accident scenario. Accordingly, [the witness] was able to offer any other information or explanation which might support it, both in direct examination and during cross. Thus, the rule in Browne v. Dunn, if it applied at all in these circumstances, which I doubt, was not violated. But even if I am wrong in that assessment, the failure to challenge [the witness's] evidence that he no longer had a motive to fabricate the accident scenario was of little consequence." - See paragraphs 46 to 53.

Evidence - Topic 4726

Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Evidence - Topic 4716 ].

Cases Noticed:

R. v. Hart (N.L.) (2012), 327 Nfld. & P.E.I.R. 178; 1015 A.P.R. 178; 97 C.R.(6th) 16; 2012 NLCA 61, refd to. [para. 13].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 21].

R. v. Yumnu (I.) (2010), 269 O.A.C. 48; 260 C.C.C.(3d) 421; 2010 ONCA 637, affd. [2012] 3 S.C.R. 777; 437 N.R. 289; 290 C.C.C.(3d) 323; 2012 SCC 73, refd to. [para. 24].

R. v. Hoilett (1991), 46 O.A.C. 168; 4 C.R.(4th) 372; 3 O.R.(3d) 449 (C.A.), refd to. [para. 24].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), leave to appeal denied (2001), 270 N.R. 193; 150 O.A.C. 197 (S.C.C.), refd to. [para. 24].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333; 68 W.C.B.(2d) 610 (C.A.), refd to. [para. 24].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 24].

R. v. Gray (B.F.) (2012), 522 A.R. 374; 544 A.P.R. 374; 2012 ABCA 51, refd to. [para. 24].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 25].

R. v. Gelle (A.) (2009), 248 O.A.C. 23; 244 C.C.C.(3d) 129; 2009 ONCA 262, refd to. [para. 25].

R. v. R.S.L. (2006), 300 N.B.R.(2d) 24; 782 A.P.R. 24; 209 C.C.C.(3d) 1; 2006 NBCA 64, refd to. [para. 25].

R. v. Serre (M.), [2011] O.A.C. Uned. 523; 97 W.C.B.(2d) 193; 2011 ONCA 586, refd to. [para. 25].

R. v. Diep (J.), [2006] A.R. Uned. 53; 2006 ABCA 148, refd to. [para. 26].

R. v. Grégoire (1980), 60 C.C.C.(2d) 542 (Que. C.A.), leave to appeal refused [1980] 2 S.C.R. vii; 34 N.R. 268, refd to. [para. 42].

R. v. Walker (J.P.) (1994), 70 O.A.C. 148; 18 O.R.(3d) 184; 90 C.C.C.(3d) 144 (C.A.), refd to. [para. 45].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 50].

R. v. Scheideman (D.G.) (2001), 277 A.R. 331; 242 W.A.C. 331; 2001 ABCA 94, refd to. [para. 50].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 61].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 74].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 79].

R. v. Rowe (J.) (2011), 285 O.A.C. 249; 281 C.C.C.(3d) 42 (C.A.), refd to. [para. 81].

Counsel:

J.C. Robb, Q.C., for the respondent;

S.M. Renouf, Q.C., and A. Badari, for the appellant.

This appeal was heard on April 29, 2013, at Edmonton, Alberta, before Berger, Martin and Bielby, JJ.A., of the Alberta Court of Appeal.

On February 28, 2014, the judgment of the Court was delivered and the following memorandums of judgment were filed:

Martin, J.A. (Bielby, J.A., concurring) - see paragraphs 1 to 75;

Berger, J.A. - see paragraphs 76 to 96.