Focus On

Criminal Law - Appeals - Grounds - Miscarriage of justice - Powers of appellate court - New trial - To receive new evidence

Thursday, August 18, 2016 @ 8:00 PM  

Appeal by the accused, Brown, from convictions for second degree murder and assault with a weapon. The accused and Reid were part of a group that got into a fistfight with another group of attendees at a casino. Both groups were told to leave the premises. Minutes later, two members of the opposing group were shot by two different shooters. One of the shootings proved to be fatal. The accused and Reid were convicted at trial and appealed to the Court of Appeal. The accused’s appeal was dismissed. The sole basis for the accused’s conviction was statements he made to Sanders contained in Sanders’ KGB statement, admitted after Sanders recanted at trial. On appeal, a new trial was ordered for Reid on the basis the trial judge failed to review the central theory of Reid’s defence. Reid was acquitted following the second trial based on reasonable doubt he was one of the shooters. The accused appealed to the Supreme Court of Canada based on new evidence arising from Reid’s trial. The new evidence related to the testimony and statements to police by an eyewitness to the shooting incident, Sahal. Some of the statements by Sahal to police were made after the conclusion of the accused’s trial, and were not disclosed to the accused until after his appeal was dismissed by the Court of Appeal. Aspects of the statements supported an inference that the accused was not one of the shooters. The Supreme Court of Canada remanded the appeal to the Court of Appeal in conjunction with the application to admit the new evidence.

HELD: Appeal allowed. New evidence admitted. The new evidence did not exist at the time of the accused’s trial. There was no evidence the accused knew Sahal or that he should have suspected Sahal would give evidence that differed significantly from his original statement. There was no physical or forensic evidence that linked the accused to the shooting. Nobody at trial placed the accused at the scene outside of the casino when the shooting occurred. No direct eyewitness identified the accused as a shooter. Sahal’s eyewitness evidence bore directly on the identity of the shooter and was capable of raising a reasonable doubt as to the accused’s identification. The procedural concerns raised by the Crown about the potential admissibility of the evidence at any future trial did not compel the conclusion that it would necessarily be excluded. The Crown conceded that the verdict would likely be affected by the new evidence. It would be a miscarriage of justice to allow the convictions to stand in the face of the new evidence without, at minimum, ordering a new trial.