R. v. Smith, (1985) 66 A.R. 195 (CA)

• Judge: Lieberman, Stevenson and Irving, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 30, 1985
• Citations: (1985), 66 A.R. 195 (CA)

R. v. Smith (1985), 66 A.R. 195 (CA)

MLB headnote and full text

R. v. Smith

(#8403-7552-A)

Indexed As: R. v. Smith

Alberta Court of Appeal

Lieberman, Stevenson and Irving, JJ.A.

December 30, 1985.

Summary:

An accused was convicted of arson and was sentenced to five years' imprisonment. The accused appealed against conviction and sentence.

The Alberta Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - An accused charged with arson chose not to testify - The trial judge began to deliver her judgment by stating that she accepted the evidence of a Crown witness - When it became apparent that the accused would be convicted, the accused sought to be permitted to testify - The Alberta Court of Appeal held that the accused had no right to testify after choosing not to, especially where the reason was an attempt to avoid a certain conviction on the basis of evidence already presented - See paragraphs 5 to 8.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - The Alberta Court of Appeal refused to hear new evidence on an appeal, where the evidence was available at trial and where it would not be determinative of the outcome even if it were admitted - See paragraph 4.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Miscarriage of justice - What constitutes - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - The Crown cross-examined a witness on a prior inconsistent statement under s. 9(2) of the Canada Evidence Act - The trial judge erred in holding that the witness adopted her previous statement and in admitting the statement as evidence of the accused's motive - The Alberta Court of Appeal refused to invoke s. 613(1)(b)(iii) to dismiss the accused's appeal notwithstanding the error, because this was not a "trivial" error, but one that was obviously very prejudicial to the accused - See paragraphs 18 to 25.

Evidence - Topic 4765

Witnesses - Examination - Prior inconsistent statements - Cross-examination on by party producing the witness - The Crown cross-examined one of its witnesses on a prior inconsistent statement under s. 9(2) of the Canada Evidence Act - The witness attempted to qualify or explain her earlier statement - The Alberta Court of Appeal held that such a qualified acceptance of a previous statement did not constitute acceptance of that earlier statement as true - The Court held that the earlier statement was therefore not admissible in evidence - See paragraphs 11 to 17.

Cases Noticed:

R. v. McInroy and Rouse (1978), 23 N.R. 589; 42 C.C.C.(2d) 481 (S.C.C.), consd. [para. 14].

R. v. Mannion, (1984), 53 A.R. 81 (Alta. C.A.), refd to. [para. 15].

R. v. Deacon, [1947] S.C.R. 531, refd to. [para. 15].

R. v. Antoine, [1949] 1 W.W.R. 701, refd to. [para. 16].

Northey v. The King, [1948] S.C.R. 135, folld. [para. 18].

Makin v. Attorney General for New South Wales, [1894] A.C. 57, refd to. [para. 18].

Gouin v. The King, [1926] S.C.R. 539, refd to. [para. 18].

Brooks v. The King, [1927] S.C.R. 633, refd to. [para. 18].

Schmidt v. Rex, [1945] S.C.R. 438, refd to. [para. 18].

Colpitts v. The Queen, [1965] S.C.R. 739, folld. [para. 19].

R. v. Duke (1985), 62 A.R. 204; 39 Alta. L.R.(2d) 313, consd. [para. 20].

R. v. Alward and Mooney, [1978] 1 S.C.R. 559; 16 N.R. 127; 18 N.B.R.(2d) 97; 26 A.P.R. 97, refd to. [para. 20].

R. v. Fanjoy (1985), 62 N.R. 253 (S.C.C.), folld. [para. 21].

R. v. John (1985), 63 N.R. 141 (S.C.C.), folld. [para. 21].

Statutes Noticed:

Evidence Act, R.S.C. 1970, c. E-10, sect. 9(2) [para. 13].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 613(1)(b)(iii).

Counsel:

Appellant in person;

Jack Watson, for the respondent.

This appeal was heard before Lieberman, Stevenson and Irving, JJ.A., of the Alberta Court of Appeal.

On December 30, 1985, Lieberman, J.A., delivered the following judgment for the Court of Appeal: