Regina v. G.D.B.

[Indexed as: R. v. B. (G.D.)]

Court File No. 27240

Supreme Court of Canada

Binnie J.

Judgment rendered: October 5, 1999

The judgment of the court was delivered by

BINNIE J.:—This appeal comes to this Court as of right on the dissent of Mr. Justice O'Leary on the ground of law set out in the formal judgment of the Court of Appeal of Alberta as follows [133 C.C.C. (3d) 309 at p. 336]:

I do not agree with the majority that where evidence is deliberately withheld at trial as part of defence strategy, it cannot be admitted as fresh evidence on appeal unless trial counsel is found incompetent or there are "unusual circumstances".

The Attorney General of Alberta moves to strike the first two grounds set out in the appellant's factum because they are said to go beyond the limited scope of the dissent. However, if on the hearing of the appeal this Court accepts the proposition of law stated by O'Leary J.A., it will still have to consider whether in applying the correct rule of law the fresh evidence in this particular case ought to have been admitted. This will require a consideration of the factual context in which appellant's counsel failed to tender the "fresh" evidence at trial. As I read the majority judgment, it did not deny in so many words the assertion made on behalf of the appellant that there was no informed consent to the decision not to use the tape recording. It is true that the majority says at para. 33, "There is no indication that the appellant questioned trial counsel during the trial as to why he was not using the tape recording", but this comment may be susceptible to different interpretations. In my view, the first and second issues in the appellant's factum are sufficiently bound up with the legal issue identified in the dissent that the issues and supporting paragraphs should not be struck out on a preliminary motion.

The motion is therefore dismissed.

Application dismissed.