R. v. Sutherland (M.J.), 2011 ABCA 319

• Judge: Picard, Watson and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 03, 2011
• Citations: 2011 ABCA 319;(2011), 515 A.R. 114

R. v. Sutherland (M.J.) (2011), 515 A.R. 114; 532 W.A.C. 114 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. NO.055

Her Majesty the Queen (respondent) v. Mickey Joseph Sutherland (appellant)

(1003-0209-A; 2011 ABCA 319)

Indexed As: R. v. Sutherland (M.J.)

Alberta Court of Appeal

Picard, Watson and Bielby, JJ.A.

November 3, 2011.

Summary:

The accused appealed his conviction by a jury of aggravated assault and being unlawfully in a dwelling house.

The Alberta Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in not giving a Vetrovec warning in relation to the complainant in this matter.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The accused appealed his conviction by a jury of aggravated assault and being unlawfully in a dwelling house - The Alberta Court of Appeal held that the trial judge erred in not giving a Vetrovec warning in relation to the complainant - "While the complainant had no prior criminal record, several factors are relevant: (a) he was testifying as a result of a plea bargain entered into with the Crown which resulted in criminal charges against him being withdrawn, (b) his version at trial was not consistent with things he had initially said to the police about who did what, and (c) he admitted at trial to having lied at the preliminary inquiry on a critical point. Moreover, the complainant's evidence was the centrepiece of the prosecution's case." - This was compounded by the trial judge's error in failing to intervene and instruct the jury that it was not to consider certain comments made by the Crown which amounted to vouching for the truthfulness of its witnesses, namely the complainant and his girlfriend - The effect of the trial judge's failure to give such directions could not be characterized as causing no substantial wrong or miscarriage of justice despite the otherwise very fair charge - This was not minor, was prejudicial, and a verdict of guilt was not inevitable - A new trial was required.

Criminal Law - Topic 4415

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Respecting evidence of witnesses - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4377 ].

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 Criminal Law - Topic 4377 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4377 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 67 C.C.C.(2d) 1, refd to. [para. 1].

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; 238 C.C.C.(3d) 489; 2009 SCC 4, refd to. [para. 6].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.AC. 165; 267 C.C.C.(3d) 453; 2011 SCC 13, refd to. [para. 7].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321; 2000 SCC 11, refd to. [para. 9].

R. v. Borg, [1969] S.C.R. 551, refd to. [para. 9].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 131 C.C.C.(3d) 380 (C.A.), refd to. [para. 9].

R. v. Harriott (A.) (2002), 168 O.A.C. 342; 58 O.R.(3d) 1; 161 C.C.C.(3d) 481 (C.A.), affd. [2003] 1 S.C.R. 39; 301 N.R. 1; 170 O.A.C. 84; 171 C.C.C.(3d) 351, refd to. [para. 9].

R. v. Chau (J.D.) (2010), 477 A.R. 326; 483 W.A.C. 326; 253 C.C.C.(3d) 211; 26 Alta. L.R.(5th) 143; 2010 ABCA 86, refd to. [para. 11].

R. v. Linklater (R.) (2009), 246 O.A.C. 303; 2009 ONCA 172, refd to. [para. 15].

R. v. Delorme (G.A.), [2010] 6 W.W.R. 31; 487 A.R. 141; 495 W.A.C. 141; 2010 NWTCA 2, refd to. [para. 15].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 17].

Counsel:

M.J. McGuire, for the respondent;

E.M. Crane, for the appellant.

This appeal was heard and decided (with reasons to follow), on November 3, 2011, by Picard, Watson and Bielby, JJ.A., of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on November 10, 2011.