Her Majesty the Queen v. Adam Michael Brown

(Alberta) (Criminal) (As of Right)


Criminal law - Evidence.


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Criminal law - Evidence - Application to admit fresh evidence - Whether there was admissible evidence before Court of Appeal capable of supporting application to admit fresh evidence - Whether majority of the Court of Appeal misapplied test for fresh evidence set out in Palmer v. The Queen, [1980] 1 S.C.R. 759.

The respondent was convicted of second degree murder and of assault with a weapon. The respondent’s appeal to the Court of Appeal was dismissed, but his co-accused’s appeal was allowed and he was acquitted following a retrial. Based on testimony given by a witness at his co-accused’s retrial and on two statements (one audio-recorded but unsworn and the other video-recorded and sworn) given to police by that same witness which were not disclosed to him until after his appeal at the Court of Appeal was dismissed, the respondent sought and was granted leave to appeal his conviction to the Supreme Court of Canada. The Court remanded the appeal to the Court of Appeal, in conjunction with the application to adduce new evidence. The statements or parts of them suggested that the respondent was not one of the shooters. A majority of the Court of Appeal admitted the new evidence, allowed the appeal and ordered a new trial. McDonald J.A., dissenting, would have dismissed the application to admit new evidence on the basis that none of the evidence would be admissible at a retrial. He would also have dismissed the appeal.