R. v. Abdelhamid (W.A.), 2015 MBCA 35

• Judge: Monnin, Beard and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 22, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 35;(2015), 315 Man.R.(2d) 310 (CA)

R. v. Abdelhamid (W.A.) (2015), 315 Man.R.(2d) 310 (CA);

      630 W.A.C. 310

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.021

Her Majesty The Queen (respondent) v. Walid Ahmed Abdelhamid (accused/appellant)

(AR 13-30-08025; 2015 MBCA 35)

Indexed As: R. v. Abdelhamid (W.A.)

Manitoba Court of Appeal

Monnin, Beard and Burnett, JJ.A.

April 15, 2015.

Summary:

The accused, a medical student from Libya, was engaged in a pediatric residency program at a Manitoba children's hospital. In June 2009, he was charged with sexual assault on a 15 year old male patient. The accused was granted judicial interim release under conditions which included the surrender of his passport. In July 2009, he fled to Austria. He was apprehended in August 2010 in Greece and extradited to Canada in May 2011. He was convicted of sexual assault in May 2013 (see [2013] Man.R.(2d) Uned. 27).

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 296 Man.R.(2d) 24, sentenced the accused to five years' imprisonment. The court denied the accused any credit for the nine months he spent in Greek detention awaiting and fighting extradition to Canada. For time spent in custody subsequent to his May 2011 return to Canada, the court granted credit at a rate of 1.5:1. The accused appealed his conviction and applied for leave to appeal his sentence.

The Manitoba Court of Appeal dismissed the conviction appeal. The court denied leave to appeal the sentence because the accused had already served his sentence in full and it was therefore a moot point.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused medical student was found guilty of sexually assaulting a 15 year old hospital patient - He appealed, arguing that the trial judge misapprehended DNA evidence that the Crown had tendered at trial - The Manitoba Court of Appeal dismissed the appeal - The trial judge did not misapprehend the DNA evidence - In any event, the trial judge's reliance on the DNA evidence to establish the accused's guilt was secondary and not the sort of material evidence that would bring about a misapprehension that affected trial fairness - See paragraphs 26 to 33.

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony - Videotaped statements - Police took a videotaped statement from a 15 year old hospital patient who alleged that he had been sexually assaulted by the accused medical student - The initial 10 minutes of the interview was not recorded because the officers were assessing the complainant's cognitive abilities due to the fact that he had suffered a concussion and been administered morphine - The accused appealed his conviction for sexual assault - He argued that the videotape should not have been admitted into evidence because the failure to record the first 10 minutes was prejudicial to his ability to challenge the reliability of what was recorded - The Manitoba Court of Appeal dismissed the appeal - The trial judge correctly set out the criteria for videotaped statements under s. 715.1(1) of the Criminal Code - She was satisfied that admitting the videotape would not interfere with the proper administration of justice or trial fairness - The accused's concerns went to matters of weight rather than admissibility - The trial judge did not err in finding the statement to be reliable and worthy of weight as evidence - Although it would have been preferable and a better practice for the police to record their pre-interview assessment, the failure to do so was not fatal to the videotape's admissibility - See paragraphs 8 to 19.

Police - Topic 2213

Duties - General duties - Recording and preserving evidence (incl. complaints) - [See Criminal Law - Topic 5464 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 3].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 9].

R. v. M.C. (2014), 318 O.A.C. 354; 2014 ONCA 307, refd to. [para. 27].

R. v. James (G.M.) (2013), 288 Man.R.(2d) 269; 564 W.A.C. 269; 2013 MBCA 14, refd to. [para. 35].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 38].

Counsel:

M.S. Minuk and D.A. Ripley, for the appellant;

R.D. Lagimodière, for the respondent.

This appeal was heard on January 22, 2015, before Monnin, Beard and Burnett, JJ.A., of the Manitoba Court of Appeal. Monnin, J.A., delivered the following judgment for the court on April 15, 2015.