David Anthony Lawes Appellant
Her Majesty The Queen Respondent
Indexed as: R. v. Lawes
File No.: 25556.
1997: October 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Evidence ‑‑ Rebuttal evidence ‑‑ Trial judge properly exercised his discretion in permitting rebuttal evidence ‑‑ Curative provisions of s. 686(1)(b)(iii) of Criminal Code applicable if part of rebuttal evidence improperly admitted.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
APPEAL from a judgment of the Alberta Court of Appeal (1996), 44 Alta. L.R. (3d) 25, 187 A.R. 321, 127 W.A.C. 321, dismissing the accused’s appeal from his conviction for second degree murder. Appeal dismissed.
Terence C. Semenuk, for the appellant.
Goran Tomljanovic, for the respondent.
The judgment of the Court was delivered orally by
1 Cory J. ‑‑ We are in substantial agreement with the majority of the Court of Appeal.
2 The rebuttal evidence introduced by the Crown relating to O.H. was properly admitted. It went to the context and the essential fabric of the alibi defence. The Crown could not have known in advance either that the appellant would testify or the testimony he would give. The rebuttal evidence was clearly relevant to an issue raised in the defence. The discretion of the trial judge to permit the rebuttal evidence was not improperly exercised in those circumstances.
3 Even if the second prong of the rebuttal evidence was improperly admitted it did not appear to influence the reasons of the trial judge. The evidence against the appellant was overwhelming. In the circumstances it is appropriate to apply the curative provisions of s. 686(1)(b)(iii) and the appeal is therefore dismissed.
Solicitors for the appellant: Singleton Urquhart Scott, Calgary.
Solicitor for the respondent: Alberta Justice, Calgary.