Accused and co-accused were convicted of second degree murder and assault with weapon arising out of shooting outside of casino following altercation between deceased and complainant’s group and accused and co-accused’s group. On appeal from convictions, accused applied to admit new evidence about testimony given by eyewitness S during co-accused’s retrial and two statements given by S to police, but not disclosed to accused until after his first appeal had been dismissed. S had stated that man with ponytail, identified as accused, was not shooter. Appeal judge held that weighed against evidence of identification based on inferences drawn from arguably ambiguous statements made afterwards by accused, S’s eyewitness evidence that man with ponytail was not man who shot deceased bore directly on identity of shooter and could therefore be of critical importance at any retrial. S’s police statements, or at least his KGB statement, could well have raised reasonable doubt as to accused’s identification as one of shooters in mind of trial judge, particularly given paucity of other evidence upon which that judge relied to assure himself of that element. New evidence was admitted, accused’s appeal was allowed, and new trial was ordered. Appeal by Crown dismissed. In all of circumstances, court was satisfied that S’s KGB statement was admissible, was reasonably capable of belief, and could reasonably have affected outcome.
R. v. Brown (2017), 2017 CarswellAlta 255, 2017 CarswellAlta 256, 2017 SCC 10, 2017 CSC 10, Abella J., Moldaver J., Karakatsanis J., Gascon J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellAlta 1190, 2016 ABCA 192, Ronald Berger J.A., J.D. Bruce McDonald J.A., and Myra Bielby J.A. (Alta. C.A.).