R. v. Worme (S.B.), [2016] A.R. TBEd. JN.036

• Judge: Martin, Wakeling and Schutz, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 14, 2015
• Citations: [2016] A.R. TBEd. JN.036;2016 ABCA 174

R. v. Worme (S.B.), [2016] A.R. TBEd. JN.036

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JN.036

Her Majesty the Queen (respondent) v. Sheldon Bertrum Worme (appellant)

(1201-0275-A; 2016 ABCA 174)

Indexed As: R. v. Worme (S.B.)

Alberta Court of Appeal

Martin, Wakeling and Schutz, JJ.A.

June 14, 2016.

Summary:

The accused was one of three men charged with first degree murder. The victim was tortured and beaten to death. During the "Mr. Big" operation, the accused's accounts of his involvement in the killing evolved from being a bystander, to a full participant. The accused was tried separately, by judge and jury. At trial, the accused recanted the confession to Mr. Big wherein he accepted responsibility for the killing. The pivotal issue was whether the accused's confession was true. The accused was convicted of first degree murder. He appealed, arguing that the trial judge erred in limiting the accused's ability to challenge the ultimate reliability of the confession by improperly limiting cross-examination about prior Mr. Big operations.

The Alberta Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred when he prohibited the proposed cross-examination. That was not a harmless error, and the Court disagreed with the Crown that a conviction was inevitable in any event. Accordingly, recourse to the curative provision (Criminal Code, s. 686(1)(b)(iii)) was not available.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross- examination of witnesses - [See Criminal Law - Topic 5337.1 ].

Criminal Law - Topic 4375.8

Procedure - Charge or directions - Jury or judge alone - Directions regarding "Mr. Big" confessions - [See Criminal Law - Topic 5337.1 ].

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - [See Criminal Law - Topic 5337.1 ].

Criminal Law - Topic 4399.4

Procedure - Charge or directions - Jury or judge alone - Directions re allegations on cross- examination or improper questions - [See Criminal Law - Topic 5337.1 ].

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - Following a trial by judge and jury, the accused was convicted of first degree murder - At trial, the accused had recanted his confession to "Mr. Big" wherein he accepted responsibility for the killing - The jury was allowed to hear evidence given in direct examination that the Mr. Big scenarios were designed to elicit confessions that were true - In cross-examination, the accused's counsel sought to question the witness about prior Mr. Big operations, where the same scenarios resulted in a false confession to murder - The trial judge ruled the question to be irrelevant - The Alberta Court of Appeal, in allowing the accused's appeal, held that the trial judge erred in limiting the accused's ability to challenge the ultimate reliability of the "Mr. Big" confession - The impugned evidence directly undermined the accused's defence that his confession was mere false bravado, and had the effect of shifting the burden of proof to him - Although the impugned evidence did have some probative value in explaining to the jury what the police hoped to achieve by engaging in certain scenarios, the prejudicial effect of the evidence clearly outweighed its probative value - See paragraphs 12 to 33.

Counsel:

J. Antonio, for the respondent;

M. Bates, for the appellant.

This appeal was heard on October 14, 2015, before Martin, Wakeling and Schutz, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of decision and reasons, filed at Calgary, Alberta, on June 14, 2016:

Martin, J.A. (Schutz, J.A., concurring) - see paragraphs 1 to 38;

Wakeling, J.A. (concurring in the result) - see paragraphs 39 to 149.