R. v. Wood (D.W.), 2006 ABCA 343

• Judge: Picard, Paperny and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 27, 2006
• Citations: 2006 ABCA 343;(2006), 397 A.R. 389 (CA)

R. v. Wood (D.W.) (2006), 397 A.R. 389 (CA);

      384 W.A.C. 389

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. DE.002

Her Majesty The Queen (respondent) v. Daniel William Wood (appellant)

(87-17810; 90-11910; 2006 ABCA 343)

Indexed As: R. v. Wood (D.W.)

Alberta Court of Appeal

Picard, Paperny and Ritter, JJ.A.

November 27, 2006.

Summary:

The accused was convicted of first degree murder in 1985. After a successful appeal, the accused was retried and again convicted in 1990. An appeal to the Court of Appeal was dismissed (125 A.R. 74; 14 W.A.C. 74) and leave to appeal to the Supreme Court of Canada was denied (131 A.R. 386; 25 W.A.C. 386). In 1993, the accused applied to the Minister under s. 690 of the Criminal Code. In 2005, based on information not disclosed to the accused, the Minister ordered a reference directing the matter to be heard as if it were a conviction appeal. The Crown conceded that relevant information in the hands of the police was not disclosed to the accused and that the fairness of the trial might have been affected. At issue was whether the court should direct a new trial (Crown's position) or substituted an acquittal or enter a stay of the proceedings (accused's position).

The Alberta Court of Appeal held that the appropriate remedy was to order a new trial.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Criminal Law - Topic 4949 ].

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - New trial - [See Criminal Law - Topic 4949 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Criminal Law - Topic 4949 ].

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - The accused was convicted of first degree murder in 1985 - He successfully appealed and was retried - In 1990, he was again convicted - In 2005, having a reasonable basis to conclude that a miscarriage of justice occurred, the Minister directed a reference to the Court of Appeal to hear the matter as if it were a conviction appeal - The Crown conceded that relevant evidence in the hands of the police had not been disclosed to the accused or the Crown and that trial fairness might have been affected - The Crown proposed a new trial - The accused sought an acquittal or a stay of proceedings - The Alberta Court of Appeal, after considering the undisclosed evidence, held that the appropriate remedy was a new trial - It was reasonably possible that the verdict might not have been the same had the trier of fact had the benefit of undisclosed evidence respecting the identity of the killer - However, the effect of the undisclosed evidence was uncertain, given the remaining evidence - A stay of proceedings was not appropriate where the damage caused by the undisclosed evidence was not irreparable - An acquittal was also not appropriate, where a properly instructed jury, on the basis of the remaining evidence, could still have reasonably convicted the accused - There was no abuse of process requiring a stay and the fact that this would be the accused's third trial, and his sentence had been served, was not determinative - The accused had a prior murder conviction and "the public interest in the apprehension and conviction of a multiple murderer is significant".

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitution of verdict - Substitution of verdict of acquittal - [See Criminal Law - Topic 4949 ].

Criminal Law - Topic 5081

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - Powers of court - [See Criminal Law - Topic 4949 ].

Cases Noticed:

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 20].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 23].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 23].

R. v. Stratton (M.) et al. (2003), 218 N.S.R.(2d) 23; 687 A.P.R. 23; 2003 NSCA 104, refd to. [para. 41].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, refd to. [para. 50].

R. v. Hinse (R.), [1995] 4 S.C.R. 597; 189 N.R. 321, refd to. [para. 50].

R. v. Sophonow (1986), 38 Man.R.(2d) 198; 25 C.C.C.(3d) 415 (C.A.), leave to appeal refused (1986), 67 N.R. 158; 44 Man.R.(2d) 80 (S.C.C.), refd to. [para. 52].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, refd to. [para. 52].

R. v. McArthur (R.L.) (1999), 232 A.R. 349; 195 W.A.C. 349; 1999 ABCA 119, refd to. [para. 53].

R. v. Bain (K.) (2005), 196 O.A.C. 81 (C.A.), refd to. [para. 53].

R. v. Bero (C.) (2000), 137 O.A.C. 336; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 54].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 696.3(3)(a)(ii) [para. 21].

Counsel:

J.B. Hawkes, for the respondent;

H. Wolch, Q.C., for the appellant.

This appeal was heard on November 7, 2006, before Picard, Paperny and Ritter, JJ.A., of the Alberta Court of Appeal.

On November 27, 2006, the following memorandum of judgment was delivered by the Court.