Episode 3: R v Badger
Jacob Charles Badger v. Her Majesty The Queen
The Appellant, Mr. Badger, was charged with the attempted murder of Mr. Ray. The two knew each other because the Appellant was friends with Mr. Ray’s sister. The Appellant was at the Ray residence the night of the shooting but left and said that he would return later. Less than ten minutes later, Mr. Ray responded to a knock at the door and two men wearing masks entered the residence. One of the two masked men pointed a double barrel shotgun at Mr. Ray and a struggle ensued. During the struggle, Mr. Ray was shot.
Mr. Ray’s mother called 911 and Mr. Ray is heard saying on that call that “Jake from State Farm”, a nickname for the Appellant, was the one who shot him. The Appellant was found nearby the residence in apparent distress, and was arrested. Mr. Ray, while being taken into the ambulance, pointed to the Appellant, and claimed that he was the one who shot him.
Mr. Ray was intoxicated at the time of these utterances.
The main issue at trial was the identity of the shooter. Mr. Ray changed his story and testified at trial that he did not know who shot him. He testified that he had a faulty memory from that night. No one else was able to identify the shooter.
The admissibility of Mr. Ray’s two spontaneous utterances pointing the finger at the Appellant was challenged by the defence. The trial judge found that the spontaneous utterances were admissible for the truth of their contents. He then held that it was the Appellant who shot Mr. Ray, convicting him of aggravated assault but acquitting him of attempted murder.
Mr. Badger appealed his conviction to the Court of Appeal for Saskatchewan on three grounds:
The trial judge erred in admitting Mr. Ray’s spontaneous utterances into evidence
The trial judge erred in assessing his alibi evidence, and
The trial judge erred in his assessment of the identification evidence.
The majority for the Court of Appeal for Saskatchewan upheld the conviction and dismissed the appeal on all three grounds.
On the first ground, the Court of Appeal found that the trial judge applied the correct test, carefully considered all of the circumstances, and determined the utterances were admissible at the trial.
On the second ground, the Court of Appeal found that there was no error in the trial judge’s treatment of the alibi evidence.
On the last ground, the Court of Appeal found that the trial judge did not err in his assessment of the identification evidence.
Justice Kalmakoff of the Court of Appeal for Saskatchewan dissented. He would have ordered a new trial based on the third ground, namely, the assessment of the identification evidence. He found the trial judge’s reasons did not subject the identification evidence to the scrutiny the law requires and that the verdict was tainted.
At the Supreme Court of Canada, the Appellant asked for a new trial. The sole issue on appeal is whether the trial judge made a legal error in his assessment of the identification evidence.