R. v. Smith (T.G.), 2007 ABCA 237

• Judge: Fraser, C.J.A., Fruman and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 11, 2006
• Citations: 2007 ABCA 237;(2007), 412 A.R. 61 (CA)

R. v. Smith (T.G.) (2007), 412 A.R. 61 (CA);

      404 W.A.C. 61

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.069

Her Majesty the Queen (respondent) v. Timothy George Smith (appellant)

(0501-0054-A; 2007 ABCA 237)

Indexed As: R. v. Smith (T.G.)

Alberta Court of Appeal

Fraser, C.J.A., Fruman and Martin, JJ.A.

July 13, 2007.

Summary:

The accused was charged with the murder of his roommate and the near-fatal stabbing of his former girlfriend. Following a trial by judge and jury, he was convicted of first degree murder and attempted murder. He appealed his convictions.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 135

General principles - Rights of accused - Waiver of rights - The accused was convicted of the first degree murder of his roommate and the attempted murder of his former girlfriend - On appeal, he submitted that he was deprived of a fair trial by the admission of bad character and propensity evidence and the lack of a sufficient limiting instruction to the jury - The Alberta Court of Appeal dismissed the appeal - Bad character evidence was introduced by both the Crown and defence - No effort was made at trial to restrict its introduction, although it clearly concerned the trial judge, who questioned its admissibility and instructed the jury on the restricted use of this evidence in his mid-trial and final charges - How the accused and the other persons involved lived was obvious from the nature of just a few acts which were admissible as part of the narrative - The defence relied upon some of the evidence to show intoxication and raise a reasonable doubt about specific intent - The defence made a considered decision not to attempt to have the accused's lengthy criminal record excluded - This amounted to an express waiver of the accused's right to a ruling on possible exclusion of evidence - The court inferred that the presentation of the accused's criminal activities was a defence strategy - Therefore, it was a significant factor to be considered on admissibility - See paragraphs 20 to 29 and 76.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Alberta Court of Appeal stated that "... a trial judge is required to review the evidence in the jury charge by tying the issues in dispute to the critical evidence relating to that issue ... The judge need not provide the jury with an oral replay of the evidence of each witness, but must relate the most important evidence to the key factual and legal issues ... It is in this context that we use the phrase 'review of the evidence'. The object is to leave the jury with a sufficient understanding of the value and effect of the most significant evidence as it relates to the relevant issues ... The test is a functional one. The key question is whether the jury understands the legal issues at trial and how the material evidence relates to those issues ... Meeting the functional test requires a consideration of three elements. First, does the charge identify the key legal issues in dispute and pull out the essential factual questions the jury is called on to decide from the morass of evidence put before them? To be most useful, discussion about legal and factual issues that are not really in dispute or have no air of reality should be avoided. Second, once the critical legal and factual questions have been identified, does the charge explain the positions of the Crown and defence on each issue and the key evidence in support of their respective positions? Third, does the charge explain to the jury how to apply the law to the facts as found by them? While the jury charge must be proper and fair, it need not be perfect." - See paragraphs 77 to 79.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Alberta Court of Appeal expressed concerns about the obligations imposed on trial judges to review the evidence and tie the issues in dispute to the critical evidence relating to that issue by R. v. Azoulay (1952, S.C.C.) and other jurisprudence - The court stated that reform of the law might be desirable - Adopting the concept of waiver might merit further consideration - If waiver were to apply to the adequacy of the trial judge's review of the evidence, the defence could not agree at trial that the review was adequate and then, on appeal, contend that it was not - Absent incompetence of counsel or a new point of law arising after conviction that bore directly on an evidentiary point, the import of which was not recognized at trial, the defence would be bound by the earlier approval of the jury charge - While compelling policy reasons supported adopting the concept of waiver on this point, thus far neither the courts through development of the common law, nor Parliament through statutory reform, had done so - Unless and until the Azoulay requirement was transformed by the Supreme Court of Canada or the concept of waiver was adopted on this issue, "appellate courts were unfortunately left to deal with the Goldilocks ground of appeal: the trial judge's review of the evidence was too little or too much, too directory or not directory enough, but never just right" - See paragraphs 80 to 82.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Alberta Court of Appeal stated that "There is a narrow exception to the current requirement that the trial judge review the evidence for the jury. It applies to those rare cases in which a review of the evidence would be unnecessary, for example, when the trial is short, there is a single issue and it is clear that the evidence relates to that issue" - See paragraph 84.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Alberta Court of Appeal stated that "current law does not permit incorporation of counsels' submissions by reference to automatically exempt the judge from the requirement of reviewing the evidence. Otherwise, the exception would destroy the obligation. ... While some may favour this approach on philosophical, policy or practical grounds, it does not reflect the present state of the law. Indeed, it would appear that advocates of this position are really attacking the Azoulay requirement itself and the justification historically proffered for it." - See paragraph 86.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See first Criminal Law - Topic 4352 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused was convicted of the first degree murder of Eliuk and the attempted murder of Palmer - Palmer testified that the accused stabbed her multiple times, left her for dead, then ran upstairs after Eliuk - On appeal, the accused submitted that the trial judge erred in failing to instruct the jury on the possibility that another individual (Boudreau) may have killed Eliuk - The Alberta Court of Appeal rejected the submission - The suggestion that Boudreau killed Eliuk was difficult to reconcile with the accused's own effective concession that he had attacked Palmer - Further, the possibility of a second assailant was never put to Palmer in cross-examination - As a result, the evidence was highly speculative and based, in part, on hearsay - The trial judge's conclusion that it amounted to "some faint air of reality" did not meet the correct threshold - Accordingly, though the trial judge erred in allowing this argument to be made, he did not err in failing to address this issue in his charge to the jury - Finally, had the trial judge left this issue with the jury, he would have been required to instruct the jury to consider the accused's culpability as a party to Eliuk's murder, a prospect neither party suggested at trial - See paragraphs 55 to 68 and 76.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused was convicted of first degree murder and attempted murder - On appeal, he submitted that the trial judge erred in instructing the jury on the law relating to intoxication - He argued that the trial judge placed the burden on him to establish the defence of intoxication, rather than on the Crown to disprove the defence once it was raised - The Alberta Court of Appeal reviewed the charge and rejected the submission - See paragraphs 69 to 74 and 76.

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - [See first Criminal Law - Topic 4352 and second Criminal Law - Topic 4357 ].

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 - The accused was convicted of murder and attempted murder - He appealed - The Alberta Court of Appeal held that the trial judge erred in failing to review the evidence and tie the issues in dispute to the critical evidence relating to that issue as required by R. v. Azoulay (1952, S.C.C.) and other jurisprudence - However, the court upheld the accused's conviction under s. 686(1)(b)(iii) of the Criminal Code - A review of the critical evidence would have worked to the accused's detriment in light of the relative strength of the Crown's case - There was no reasonable possibility that the verdict would have been different had the trial judge reviewed the evidence - See paragraphs 52 to 54 and 91.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Evidence - Topic 7156 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 135 ].

Evidence - Topic 7156

Opinion evidence - Prohibited opinions - Re truthfulness of statement made by a party or an accused - The accused was convicted of first degree murder and attempted murder - At trial, Dr. Hashman, a forensic psychiatrist and a rebuttal witness for the Crown, commented on the accused's credibility - The evidence was led without objection - The defence expert, Dr. Dalby, had testified in part that "... when people tell me that they don't remember crimes ... I usually don't believe them. In this particular case, I think there could be a valid explanation for what he is telling me. At least there is a strong hypothesis that could ring true" - On appeal, the accused submitted that Dr. Hashman's opinion evidence of his credibility was inadmissible and highly prejudicial - The Alberta Court of Appeal dismissed the appeal - The general rule was that an expert witness was not providing helpful or admissible evidence when simply offering an opinion on the veracity of the account given by the accused or any other witness - Thus, there was at least a serious question about whether this aspect of Dr. Dalby's evidence was admissible - In the circumstances, Dr. Hashman's evidence was not unfair, as it avoided a serious imbalance in the evidence - Most important, the trial judge instructed the jury, mid-trial and in his final charge, about the limited use of this evidence and the purpose of expert evidence generally - See paragraphs 30 to 34 and 76.

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - [See Evidence - Topic 7156 ].

Cases Noticed:

R. v. Nygaard and Schimmens (1987), 78 A.R. 389 (C.A.), revd. [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 24].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 26].

R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, refd to. [para. 27].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 27].

R. v. Murray (C.E.) (1995), 165 A.R. 394; 89 W.A.C. 394 (C.A.), refd to. [para. 27].

R. v. W.B. (2000), 134 O.A.C. 1; 145 C.C.C.(3d) 449 (C.A.), refd to. [para. 27].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 29].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 32].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 32].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 32].

R. v. Mullins-Johnson (W.) (1996), 96 O.A.C. 212; 31 O.R.(3d) 660 (C.A.), affd. [1998] 1 S.C.R. 977; 226 N.R. 365; 110 O.A.C. 1, refd to. [para. 32].

R. v. Mahalingan (R.) (2006), 209 O.A.C. 198; 80 O.R.(3d) 35 (C.A.), leave to appeal granted (2006), 362 N.R. 390; 228 O.A.C. 396 (S.C.C.), refd to. [para. 36].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, folld. [paras. 36, 77].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 38].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 39].

R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 2005 SCC 27, refd to. [para. 42].

Azoulay v. The Queen, [1952] 2 S.C.R. 495, folld. [paras. 44, 77].

R. v. Karaibrahimovic (J.J.), [2002] 7 W.W.R. 452; 303 A.R. 181; 273 W.A.C. 181; 2002 ABCA 102, refd to. [paras. 44, 77].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 46].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361; 37 N.R. 591, refd to. [para. 46].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 52].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 61].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 63].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 64].

R. v. Grandinetti (C.H.), [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. 64].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 1; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 70].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 70].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, folld. [para. 77].

R. v. Archer - see R. v. R.W.A.

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 77].

R. v. C.E.N., [2003] A.R. Uned. 585; 2003 ABCA 283, refd to. [para. 84].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361; 37 N.R. 591, refd to. [para. 88].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 91].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 91].

Counsel:

E.J. Tolpanen, for the respondent;

P.J. Royal, Q.C., for the appellant.

This appeal was heard on October 11, 2006, by Fraser, C.J.A., Fruman and Martin, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered its decision on July 13, 2007, including the following opinions:

Martin, J.A. - see paragraphs 1 to 75;

Fraser, C.J.A. (Fruman, J.A., concurring) - see paragraphs 76 to 92.