Akeem Smith Seruhungo v. Her Majesty the Queen
(Alberta) (Criminal) (As of Right)
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Criminal law - Evidence - Admissibility - Confirmatory evidence - Hearsay - Whether the trial judge failed to apply the correct legal test for corroboration - Whether the trial judge committed a legal error in addressing the evidence relied on as confirmatory in the same manner in which it was presented to him - Whether the trial judge’s determination that the potentially confirmatory evidence did not restore his faith in the witness was subject to appellate review - Whether the trial judge erred in law in ruling text messages to be inadmissible - Whether any such error would have had a material effect on the trial in accordance with the test set out in R. v. Graveline, 2006 SCC 16,  1 S.C.R. 609 - Whether the trial judge is entitled to decline to review impugned evidence when considering its admissibility.
Mr. Seruhungo was acquitted on a charge of manslaughter. It was alleged that he aided or abetted an unlawful act causing the death of the victim by providing a gun to the person who shot and killed the victim, or, alternatively, that he had formed a common purpose to commit an unlawful act, which foreseeably resulted in the victim being shot. The central issue at trial was whether the Crown had proven beyond a reasonable doubt that Mr. Seruhungo was a party to the offence. The trial judge found one of the Crown’s critical witnesses to be incredible and unreliable, and that it would be dangerous to convict Mr. Seruhungo on that witness’s evidence unless it was confirmed by independent evidence. The Crown, acknowledging that this witness was unsavoury, submitted that 19 items of independent evidence confirmed parts of the witness’s evidence. Each of those items were assessed by the trial judge and found to be of no confirmatory value. The Crown had also sought admission of text messages sent between the shooter and the victim on the night of the shooting, some of which may have corroborated parts of the witness’s evidence, but the trial judge determined the text messages to be hearsay and inadmissible. On appeal by the Crown, a majority of the Court of Appeal found that the trial judge erred in considering the elements of confirmatory evidence individually rather than cumulatively, and in excluding some text messages from evidence. It allowed the appeal and ordered a new trial. O’Ferrall J.A., dissenting, would have dismissed the appeal.
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