Case information
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35499
Alvin Daniel Waite v. Her Majesty the Queen
(Alberta) (Criminal) (As of Right)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2014-03-03 | Appeal closed | |
| 2014-02-28 | Transcript received, 42 pages | |
| 2014-02-24 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2014-02-21 | Respondent's condensed book, (Book Form), Submitted in Court (14 copies) | Her Majesty the Queen |
| 2014-02-21 |
Judgment on the appeal rendered, CJ Cro Mo Ka Wa, The appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 0801-0092-A, 2013 ABCA 257, dated July 11, 2013, was heard on February 21, 2014, and the Court on that day delivered the following judgment orally: THE CHIEF JUSTICE — On this appeal as of right, the appellant raises three questions of law on which a judge of the Alberta Court of Appeal dissented. Two of them can be dealt with summarily. First, the appellant submits that the trial judge was required as part of her instructions on reasonable doubt to specifically direct the jury that they had to acquit both accused if they could not decide which accused had committed the murder. Second, the appellant submits that the trial judge failed to properly explain to the jury the relationship between the intoxication defence and the mens rea required for aiding and abetting second degree murder. For the reasons given by Rowbotham J.A. in the Court of Appeal, we would not give effect to these grounds. The third ground of appeal relates to certain out-of-court statements made by the appellant’s co-accused and which the Crown introduced into evidence against the co-accused as party admissions. The appellant submits that the trial judge erred by failing to instruct the jury that it could rely on those statements for their truth in determining their verdict in relation to the appellant. We would not give effect to this argument. The general rule is that out of court statements by a party may be adduced as evidence of their truth by an opposite party. But, as the trial judge instructed the jury, statements admitted on that basis may in general be used only in deciding the case of the accused who made the statements. The trial judge gave this standard instruction with the express agreement of trial counsel. She did not err in doing so. The appellant’s counsel at trial did not seek to adduce the co-accused’s out of court statements for their truth as part of the appellant’s case under the principled approach to the hearsay rule or on any other basis. There appears to be nothing that would have prevented the appellant from attempting to have these statements considered for their truth under the principled approach to the hearsay rule. However, no such attempt was made here. There was, therefore, no basis raised for the judge to give the instruction now sought. We note that R. v. Edwards, 2004 BCCA 558, in which one accused adduced in evidence as part of his case an inculpatory out of court statement by a co-accused, gives rise to different issues which we do not have to address here. While that is sufficient to address the legal issues on which the dissent in the Court of Appeal was based, we also observe that the statements made by the appellant and his co-accused were highly unreliable on their face and tended, in any event, to incriminate both of them. There is no suggestion that defence counsel not pursuing the admissibility of these statements as evidence of their truth by virtue of the principled approach to hearsay or seeking a severance so that the co-accused would be a compellable witness were anything other than reasonable tactical decisions. No basis has been shown to permit the appellant to revisit these matters on appeal: see R. v. J.F., 2013 SCC 12, at para. 68. For these reasons, the appeal is dismissed. Dismissed |
|
| 2014-02-21 |
Hearing of the appeal, 2014-02-21, CJ Cro Mo Ka Wa Judgment rendered |
|
| 2014-01-28 | Appeal perfected for hearing | |
| 2014-01-24 | Certificate of counsel (attesting to record) | Her Majesty the Queen |
| 2014-01-24 | Respondent's book of authorities, Completed on: 2014-01-24 | Her Majesty the Queen |
| 2014-01-24 | Respondent's record, (4 volumes), Completed on: 2014-01-24 | Her Majesty the Queen |
| 2014-01-24 | Respondent's factum, Completed on: 2014-01-24 | Her Majesty the Queen |
| 2014-01-10 | Notice of appearance, John Hooker and Eleanor Funk will be present at the hearing. | Alvin Daniel Waite |
| 2013-11-27 | Notice of appearance, Jolaine Antonio and Matt Dalidowicz will be present at the hearing. | Her Majesty the Queen |
| 2013-11-25 | Notice of hearing sent to parties | |
| 2013-11-19 |
Appeal hearing scheduled, 2014-02-21, Early start 9:00 a.m. Judgment rendered |
|
| 2013-11-12 | Appellant's book of authorities, (Book Form), Completed on: 2013-11-12 | Alvin Daniel Waite |
| 2013-11-12 | Appellant's record, (Book Form), Completed on: 2013-11-12 | Alvin Daniel Waite |
| 2013-11-12 | Appellant's factum, (Book Form), Completed on: 2013-11-12 | Alvin Daniel Waite |
| 2013-10-01 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2013-09-05 | Correspondence received from, Jolaine Antonio re: counsel for the respondent | Her Majesty the Queen |
| 2013-08-22 | Notice of appeal, CA order missing(rec'd 2013-10-18) (amended notice filed on 2013-10-02), Completed on: 2013-11-04 | Alvin Daniel Waite |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Waite, Alvin Daniel | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: Waite, Alvin Daniel
Counsel
Eleanor Funk
410 - 6th Street S.W.
Calgary, Alberta
T2P 1X2
Telephone: (403) 262-7722 Ext: 229
FAX: (403) 262-5991
Email: c.johnhooker@telus.network
Agent
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Her Majesty the Queen
Counsel
Matt Dalidowicz
3rd Floor, Centrium Place
300, 332 - 6 Avenue S.W.
Calgary, Alberta
T2P 0B2
Telephone: (403) 592-4902
FAX: (403) 297-3453
Email: jolaine.antonio@gov.ab.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Summary
Keywords
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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Criminal law - Charge to jury - Whether the trial judge erred by failing to advise the jury that if it found that a co-accused had admitted, in an out-of-court statement, that he was the one who killed the victim, or alternatively, that he was the person who slit the victim’s throat, the admission could be used in determining the accused’s culpability - Whether the trial judge erred by failing to instruct the jury properly on the potential acquittal of both co-accused - Whether the trial judge erred in failing to adequately instruct the jury in relation to aiding and abetting, and intoxication.
The appellant and a co-accused, Michael Guignard, were charged with second degree murder in the death of Roy David. Mr. David died as a result of slash wounds to his neck. Both accused admitted to being in Mr. David’s apartment at the time of the homicide but each claimed that the other was solely responsible for Mr. David’s death. Neither testified at trial, nor did they call any evidence. The jury convicted them both of second degree murder. Both appealed their convictions, alleging inadequate jury instructions. Mr. Guignard died before the appeal was heard. The majority of the Court of Appeal dismissed the appellant’s appeal, holding that the appellant did not demonstrate any reviewable error in the trial judge’s instructions to the jury.
Lower court rulings
Court of Queen’s Bench of Alberta
051507812Q1
Appellant convicted of second degree murder
Court of Appeal of Alberta (Calgary)
0801-0092-A, 2013 ABCA 257
Appeal dismissed
Memorandums of argument on application for leave to appeal
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Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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