R. v. Seruhungo (A.S.), (2015) 600 A.R. 356

• Judge: Bielby, O'Ferrall and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 03, 2015
• Citations: (2015), 600 A.R. 356;2015 ABCA 189

R. v. Seruhungo (A.S.) (2015), 600 A.R. 356; 645 W.A.C. 356 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.029

Her Majesty the Queen (appellant) v. Akeem Smith Seruhungo (respondent)

(1303-0250-A; 2015 ABCA 189)

Indexed As: R. v. Seruhungo (A.S.)

Alberta Court of Appeal

Bielby, O'Ferrall and Brown, JJ.A.

June 3, 2015.

Summary:

A 17 year old youth (L.L.) shot and killed another youth. The accused, who was present and allegedly provided L.L. with the gun, was charged with manslaughter on the basis that he was a party to the offence by aiding and abetting L.L. The Crown's case depended almost entirely on the acceptance of the testimony of an admittedly unsavoury witness (Mohammad). Accordingly, his evidence needed to be confirmed or corroborated by independent evidence. The Crown offered 19 pieces of independent evidence to confirm Mohammad's testimony. The trial judge, in acquitting the accused, rejected Mohammad's evidence in its entirety. The Crown appealed, arguing that the trial judge erred by, inter alia, applying the wrong test to determine what constituted confirmatory evidence and excluding text message evidence as inadmissible hearsay.

The Alberta Court of Appeal, O'Ferrall, J.A., dissenting, allowed the appeal and ordered a new trial. The trial judge erred in considering each item of potentially confirmatory evidence individually without considering whether, cumulatively, those items of evidence as a whole were capable of confirming that Mohammad was telling the truth respecting the accused's involvement with L.L. in a plan to harm the youth. Further, the trial judge erred in excluding some of the text messages as inadmissible hearsay, because they were not relied on for the truth of their content. Those texts were solely to establish that they were composed and sent. A new trial was required notwithstanding there was ample evidence to reject Mohammad's evidence in its entirety, because the evidence rejected might have been reasonably considered to have had a material bearing on the acquittal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - A 17 year old youth (L.L.) shot and killed another youth - The accused, who was present and allegedly provided L.L. with the gun, was charged with manslaughter on the basis that he was a party to the offence by aiding and abetting L.L. - The Crown's case depended almost entirely on the acceptance of the testimony of an admittedly unsavoury witness (Mohammad) - Accordingly, his evidence needed to be confirmed or corroborated by independent evidence - The Crown offered 19 pieces of independent evidence to confirm Mohammad's testimony - The trial judge, in acquitting the accused, rejected Mohammad's evidence in its entirety - The Crown appealed, arguing that the trial judge erred by applying the wrong test to determine what constituted confirmatory evidence and excluding text message evidence as inadmissible hearsay - The Alberta Court of Appeal allowed the appeal and ordered a new trial - The trial judge erred in considering each item of potentially confirmatory evidence individually without considering whether, cumulatively, those items of evidence as a whole were capable of confirming that Mohammad was telling the truth respecting the accused's involvement with L.L. in a plan to harm the youth - Further, the trial judge erred in excluding some of the text messages as inadmissible hearsay, because they were not relied on for the truth of their content - Those texts were solely to establish that they were composed and sent - A new trial was required notwithstanding there was ample evidence to reject Mohammad's evidence in its entirety, because the evidence rejected might have been reasonably considered to have had a material bearing on the acquittal - See paragraphs 14 to 38.

Evidence - Topic 1500

Hearsay rule - General principles and definitions - Definition and general rule - The Alberta Court of Appeal stated that "Hearsay evidence is an out-of-court statement tendered for the truth of its contents ... It is presumptively inadmissible, because of the danger to the fairness or truth-seeking function of a trial that is posed by the inability to test and assess the putative declarant's perception, memory, narration, or sincerity underlying the content of the statement. ... The rule is therefore purpose-driven, focussing on whether the out-of-court statement is sought to be admitted for the truth of its contents. It follows that an out-of-court statement which is sought to be admitted only to support the fact that the statement was made is not inadmissible hearsay evidence." - See paragraph 23.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Criminal Law - Topic 5515 ].

Cases Noticed:

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86, refd to. [para. 2].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 2].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 12].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 12].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 56 C.C.C.(3d) 181, refd to. [para. 12].

R. v. Spackman (K.) (2012), 300 O.A.C. 14; 295 C.C.C.(3d) 177; 2012 ONCA 905, refd to. [para. 13].

R. v. Saddleback (C.B.) (2014), 575 A.R. 203; 612 W.A.C. 203; 65 M.V.R.(6th) 189; 2014 ABCA 166, refd to. [para. 13].

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. 16].

R. v. Sylvain (W.) (2014), 575 A.R. 59; 612 WA.C. 69; 310 C.C.C.(3d) 1; 2014 ABCA 153, refd to. [para. 16].

R. v. Warkentin, [1977] 2 S.C.R. 355; 9 N.R. 301; 70 D.L.R.(3d) 20, refd to. [para. 17].

R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116; 147 C.C.C.(3d) 193 (C.A.), refd to. [para. 17].

R. v. Boucher (M.) (2000), 38 C.R.(5th) 342; 2000 CarswellQue 3701 (C.A.), leave to appeal denied [2001] 1 S.C.R. vii; 270 N.R. 193; 153 C.C.C.(3d) vi, refd to. [para. 17].

R. v. Khan (A.) (2011), 311 B.C.A.C. 61; 529 W.A.C. 61; 282 C.C.C.(3d) 396; 2011 BCCA 382, refd to. [para. 18].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 18].

R. v. Dowe (M.G.) (2007), 260 N.S.R.(2d) 306; 831 A.P.R. 306; 2007 NSCA 128, revd. [2008] 3 S.C.R. 109; 382 N.R. 1; 271 N.S.R.(2d) 398; 867 A.P.R. 398; 2008 SCC 55, refd to. [para. 20].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 23].

R. v. Baldree (C.), [2013] 2 S.C.R. 520; 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 23].

R. v. Perciballi (P.) et al. (2001), 146 O.A.C. 1; 154 C.C.C.(3d) 481 (C.A.), affd. [2002] 2 S.C.R. 761; 289 N.R. 376; 161 O.A.C. 201; 2002 SCC 51, refd to. [para. 23].

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 29].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 34].

R. v. Cain (J.D.) (2010), 502 A.R. 322; 517 W.A.C. 322; 2010 ABCA 371, refd to. [para. 35].

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. 71].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 108 D.L.R.(4th) 32, refd to. [para. 73].

Counsel:

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

D.R. Hatch, for the respondent.

This appeal was heard before Bielby, O'Ferrall and Brown, JJ.A., of the Alberta Court of Appeal.

On June 3, 2015, the memorandum judgment of the Court was delivered and the following opinions were filed:

Brown, J.A. (Bielby, J.A., concurring) - see paragraphs 1 to 38;

O'Ferrall, J.A., dissenting - see paragraphs 39 to 94.