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

• Judge: Conrad,McFadyen,Sulatycky
• Neutral Citation: 2002 ABCA 310
• Court: Court of Appeal (Alberta)
• Date: 18 January 2001
• Citation: 2002 ABCA 310,(2002), 320 A.R. 151 (CA),320 AR 151,170 CCC (3d) 500,9 CR (6th) 354,[2002] CarswellAlta 1665,[2002] AJ No 1558 (QL),288 WAC 151,320 A.R. 151,(2002), 320 AR 151 (CA),[2002] A.J. No 1558 (QL),288 W.A.C. 151

R. v. Underwood (G.R.) (2002), 320 A.R. 151 (CA);

    288 W.A.C. 151

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. JA.058

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

(18146; 2002 ABCA 310)

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

Alberta Court of Appeal

Conrad and McFadyen, JJ.A., and Sulatycky, A.C.J.Q.B.(ad hoc)

December 20, 2002.

Summary:

The accused was being retried for murder. The defence sought to introduce statements by Phillips (now deceased) to his spouse and another person, allegedly implicating himself 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 held that the trial judge erred in not admitting one of the statements. The court ordered a new trial.

Criminal Law - Topic 4971

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - Effect of - The accused was convicted of murder - The Alberta Court of Appeal held that the trial judge erred in not admitting certain hearsay evidence and ordered a new trial - The court rejected the Crown's submission that the appeal should be dismissed on the basis that no substantial wrong or miscarriage occurred because new evidence admitted on the appeal countered the wrongly excluded hearsay evidence - The court stated that it would not weigh hearsay evidence on appeal as it would have to assess the credibility of witnesses that it had not seen - Weighing evidence, and in the case of hearsay evidence, assessing its ultimate reliability, was a job for the trier of fact, and the Court of Appeal should not get involved in that process unless it was absolutely necessary -See paragraphs 64 to 70.

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See Criminal Law - Topic 4971 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 4971 ].

Criminal Law - Topic 5205

Evidence and witnesses - Admissibility and relevancy - General - The accused was being retried for murder - The defence sought to introduce a statement by Phillips (now deceased) to Toy, allegedly implicating himself in the murder - Phillips allegedly told Toy "They got the wrong guy on that charge" and then pointed to himself - The trial judge held that the hearsay evidence was irrelevant because it was equivocal - The Alberta Court of Appeal held that the statement was not equivocal - See paragraph 24 - Further, it was "also important to remember that the task of the defence is to establish reasonable doubt. When a person's liberty is at stake, the danger of equivocal evidence must be substantial. Evidence that points to someone else as the murderer is evidence that must be heard." - See paragraph 27.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Alberta Court of Appeal stated that "Broadly stated, hearsay is an out-of-court statement, or physical assertion, made by someone other than the witness reporting it, introduced for the proof of its contents . The Supreme Court of Canada has recently said the proposed use of the evidence is as important to its definition as its nature." - See paragraph 29.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was being retried for murder - The defence sought to introduce a statement by Phillips (now deceased) to Toy, allegedly implicating himself in the murder - Phillips allegedly told Toy "They got the wrong guy on that charge" and then pointed to himself - The Alberta Court of Appeal held that the evidence was admissible hearsay - It was relevant and fit within the statement against penal interest exception -The court also held that the statement satisfied the principled exception (necessary and reliable) and that the trial judge erred in considering the presence or absence of corroborating evidence in determining reliability - Further, the probative value of the evidence was not outweighed by prejudicial effect - See paragraphs 16 to 30.

Evidence - Topic 1553

Hearsay rule - Exceptions and exclusions - Statements against interest - What constitutes a statement against interest - The Alberta Court of Appeal held that "a party hoping to rely on the penal interest exception, to justify the admission of out-of-court statements by a dead person, must show three things: (a) that at the time that the declarant made the declaration it was against his or her penal interest; (b) that the statement was made in circumstances where the declarant should have known it is against penal interest; and (c) that the potential for penal consequences was not too remote." - See paragraph 36.

Evidence - Topic 1553

Hearsay rule - Exceptions and exclusions - Statements against interest - What constitutes a statement against interest - [See Evidence - Topic 1527 ].

Cases Noticed:

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241; 88 C.C.C.(3d) 417; 28 C.R.(4th) 265, refd to. [para. 11].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 18].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 18].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 18].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1; 48 C.C.C.(2d) 1, refd to. [para. 20].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 25].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341; 7 C.C.C.(3d) 97, refd to. [para. 26].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 33].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 34].

R. v. Lucier, [1982] 1 S.C.R. 28; 40 N.R. 153; 14 Man.R.(2d) 380; 65 C.C.C.(2d) 150, refd to. [para. 35].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179; 111 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 40].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 47].

Housen v. Nikolaisen (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1 (S.C.C.), refd to. [para. 62].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 67].

Authors and Works Noticed:

Kerans, R.P., Standards of Review Employed by Appellate Courts (1994), p. 73 [para. 61].

Counsel:

J. Hawkes, for the respondent;

B.Q.H. Der, for the appellant.

This appeal was heard on January 18, 2001, by Conrad and McFadyen, JJ.A., and Sulatycky, A.C.J.Q.B.(ad hoc), of the Alberta Court of Appeal. The Court of Appeal delivered its judgment on December 20, 2002, when the following opinions were filed:

Conrad, J.A. - see paragraphs 1 to 71;

McFadyen, J.A. - see paragraphs 72 to 73;

Sulatycky, J.A. - see paragraph 74.