R. v. Underwood (G.R.),

• Judge: A. Macleod,Hunt,O'Brien
• Neutral Citation: 2008 ABCA 263
• Date: 13 June 2008
• Subject Matter: CIVIL RIGHTS,EVIDENCE,CRIMINAL LAW
• Court: Court of Appeal (Alberta)

R. v. Underwood (G.R.) (2008), 433 A.R. 298 (CA);

      429 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JL.101

Her Majesty the Queen (respondent) v. Gary Richard Underwood (appellant)

(0501-0035-A; 2008 ABCA 263)

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

Alberta Court of Appeal

Judicial District of Calgary

Hunt and O'Brien, JJ.A., and A. Macleod, J.(ad hoc)

July 18, 2008.

Summary:

The accused appealed his first degree murder conviction following a jury trial, claiming that the trial judge erred in not giving him sufficient time to prepare his defence and in refusing to decide whether the accused could be cross-examined on his criminal record until after he elected whether or not to testify (i.e., Corbett application).

The Alberta Court of Appeal, in a decision reported at 174 A.R. 204; 102 W.A.C. 204, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, in a decision reported at 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, allowed the appeal and ordered a new trial on the ground that the trial judge erred in refusing to rule on the Corbett application until after the accused had testified. The court set out the appropriate procedure. The accused was retried for murder. The defence sought to introduce statements by Phillips (now deceased) to his spouse and another person (Toy), allegedly implicating Phillips in the victim's murder.

The Alberta Court of Queen's Bench, in a decision reported at 238 A.R. 311, held that the statements were not admissible. The accused was convicted. He appealed.

The Alberta Court of Appeal, in a decision reported at 320 A.R. 151; 288 W.A.C. 151, held that the trial judge erred in not admitting Toy's statements and this alone justified a new trial. At the new trial, the admissibility of the evidence of Phillip's spouse and proposed new Crown evidence by Toy (now deceased) could be determined. The accused applied for a stay of proceedings alleging a violation of his s. 11(b) Charter right to trial within a reasonable time. Alternatively, he alleged an abuse of process in violation of his s. 7 Charter rights.

The Alberta Court of Queen's Bench, in a decision reported at 379 A.R. 363, dismissed the application. The accused was tried a third time and convicted. He appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with first degree murder in 1992 - Two jury convictions were overturned and new trials ordered - At his third trial in 2005, the accused applied for a stay of proceedings alleging an abuse of process in violation of his s. 7 Charter rights - The trial judge agreed that s. 7 was breached - Appellate delay applied to s. 7 and 13 years was an unusually long delay - Further, a defence witness (Toy) and another person who had been implicated in the murder had died - A key Crown witness (Karazda) no longer recalled the events - However, Toy and Karazda had testified and been cross-examined in the first two trials - A stay was not warranted - The accused appealed - He argued, inter alia, that the trial judge should have ruled earlier on the stay application, specifically before ruling on a Crown application to admit new (rebuttal) evidence that, shortly before his death, Toy told two undercover officers that he had lied at the second trial to assist the accused - The Alberta Court of Appeal held that the trial judge made no error in refusing a stay - This was not one of the "clearest of cases" - The reading in of Toy's and Karadza's evidence had already given the accused a remedy and he was not prejudiced - The admission of the rebuttal evidence did not work any trial unfairness - Further, the rebuttal evidence played no role in the 13 year delay that grounded the s. 7 finding - See paragraphs 31 to 37.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 8380.5

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Appeals - The accused was charged with first degree murder in 1992 - Two jury convictions were overturned and new trials ordered - At his third trial in 2005, the accused applied for a stay of proceedings alleging an abuse of process in violation of his s. 7 Charter rights - The trial judge agreed that s. 7 was breached - Appellate delay applied to s. 7 and 13 years was an unusually long delay - Further, a defence witness and another person who had been implicated in the murder had died - A key Crown witness no longer recalled the events - However, the two witnesses had testified and been cross-examined in the first two trials - A stay was not warranted - The accused appealed - The Alberta Court of Appeal held that the trial judge's choice of remedy concerned an exercise of discretion - The court could intervene in a trial judge's exercise of his or her discretion only if there was a misdirection or the decision was so clearly wrong as to amount to an injustice - See paragraph 11.

Civil Rights - Topic 8411

Canadian Charter of Rights and Freedoms - Criminal proceedings - Appeals - [See Civil Rights - Topic 8380.5 ].

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - The accused was convicted of first degree murder - He appealed on the ground, inter alia, that the trial judge misdirected the jury in his response to a request for clarification of first degree murder - The Alberta Court of Appeal rejected the ground - The jury began deliberating mid-morning and, in the early afternoon of the second day, asked the trial judge to "clarify first degree murder" - He discussed the question with counsel and explained how he intended to handle it - Neither counsel expressed concern at that point or after the recharge - Less than half an hour after the recharge the jury returned their guilty verdict - It would have been preferable if the trial judge had mentioned the possible effect of intoxication on planning and deliberation when he gave the recharge, but his failure to do so was not a reversible error - His original charge covered this and was not flawed - During the recharge he referred to the copy of the charge in the jury's possession, specifically mentioning that he had dealt with intoxication - See paragraphs 38 to 50.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The accused appealed his conviction for first degree murder - The Alberta Court of Appeal stated that "The first ground of appeal concerns the admissibility of evidence, a question of law subject to review on the standard of correctness ... Absent an error in principle, appellate courts will be reluctant to interfere with a trial judge's decision regarding admissibility ... If the trial judge correctly apprehends and applies the law, weighing the evidence's prejudicial value against its probative value is an exercise of discretion and the trial judge is entitled to deference." - See paragraph 10.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See Evidence - Topic 1553 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 1553 ].

Evidence - Topic 1553

Hearsay rule - Exceptions and exclusions - Statements against interest - What constitutes a statement against interest - The accused was being retried for murder - He testified that he had not committed the murder and called two witnesses, Toy (an associate) and Ruth Phillips, who gave hearsay evidence tending to implicate her late husband Kenneth as the murderer - Toy stated that Kenneth had told him after the murder that "they got the wrong guy on the charge" and then pointed to himself - Ruth gave evidence about her husband's erratic and violent behaviour after the murder - The trial judge determined that this evidence was inadmissible hearsay - The accused was convicted again - On appeal, he argued that the trial judge erred by not admitting the hearsay statements - By this time Toy was dead - The Crown applied to admit new (rebuttal) evidence that, shortly before his death, Toy told two undercover officers that he had lied at the second trial to assist the accused - A commissioner determined that this evidence was reasonably worthy of belief - The Court of Appeal held that since Toy's original evidence ought to have been admitted at the second trial, this alone justified a new trial, and the admissibility of Ruth Phillip's evidence and the Crown's proposed new rebuttal evidence could be dealt by the next trial judge - The Alberta Court of Appeal held that the trial judge properly admitted the rebuttal evidence - Toy's statements that he had lied were exceptions to the rule against hearsay because against his penal interest (he effectively admitted perjury) - The rebuttal evidence met threshold reliability, being made spontaneously while the officers were driving Toy from his home to a downtown location - The weighing of prejudicial effect versus probative value was not based on any legal error and was reasonable - See paragraphs 16 to 30.

Cases Noticed:

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. 10].

R. v. Andres (H.H.) (2003), 339 A.R. 334; 312 W.A.C. 334; 2003 ABCA 333, refd to. [para. 10].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 10].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 11].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 11].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 12].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 20].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 20].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 20].

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. 22].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 130 D.L.R.(4th) 235, refd to. [para. 31].

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, refd to. [para. 45].

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

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. 46].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 46].

R. v. Munson (K.) et al. (2003), 232 Sask.R. 44; 294 W.A.C. 44; 2003 SKCA 28, refd to. [para. 48].

R. v. Twiss (D.R.) (2002), 163 B.C.A.C. 52; 267 W.A.C. 52; 2002 YKCA 1, refd to. [para. 48].

R. v. Foote (M.S.) (1998), 108 B.C.A.C. 37; 176 W.A.C. 37 (C.A.), refd to. [para. 48].

R. v. Grewall (A.S.) et al. (2003), 185 B.C.A.C. 247; 303 W.A.C. 247; 2003 BCCA 441, refd to. [para. 48].

Counsel:

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

E. Tolppanen, for the respondent.

This appeal was heard at Calgary, Alberta, on June 13, 2008, by Hunt and O'Brien, JJ.A., and A. Macleod, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on July 18, 2008.