R. v. Aitken (D.C.M.), (2012) 319 B.C.A.C. 125 (CA)

• Judge: Finch, C.J.B.C., Hall and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 02, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 319 B.C.A.C. 125 (CA);2012 BCCA 134

R. v. Aitken (D.C.M.) (2012), 319 B.C.A.C. 125 (CA);

    542 W.A.C. 125

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AP.004

Regina (respondent) v. Daniel Christopher Miles Aitken (appellant)

(CA036854; 2012 BCCA 134)

Indexed As: R. v. Aitken (D.C.M.)

British Columbia Court of Appeal

Finch, C.J.B.C., Hall and Hinkson, JJ.A.

April 2, 2012.

Summary:

The accused appealed his conviction of first degree murder.

The British Columbia Court of Appeal dismissed the appeal.

Editor's note: there are several cases involving this accused.

Criminal Law - Topic 4379

Procedure - Charge or directions - Judge or jury alone - Directions re evidence of character or credibility of accused - Merino was found shot dead - The accused was convicted of first degree murder - The accused appealed, asserting that the trial judge erred in admitting evidence of the discovery of certain weapons, ammunition, and a bullet-proof vest - These items could be linked to Poole, who had rented the storage facility where most of the items were found, and to the accused - The British Columbia Court of Appeal dismissed the appeal - Evidence of the items found at the storage facility rented by Poole was properly ruled admissible - Most of the evidence was clearly relevant and potentially probative - This was a case which of necessity had to involve a fair amount of evidence of bad character - Both Merino and the accused were heavily involved in drug trafficking - It was obvious throughout the trial that the accused and many of his friends and associates were engaged in an "unorthodox, and at times criminal, lifestyle" - The fact that he and his close friend Poole had a cache of weapons was simply another facet of that lifestyle - As was typical of bad character evidence, such evidence could have been used to the disadvantage of the accused if unfairly considered by the jury - The trial judge made plain to the jury both during the trial and in her closing charge that the jury was not permitted to use this sort of evidence in a prejudicial fashion toward the accused - The decision of the judge in the present case on the admissibility of such species of evidence was supportable having regard to the issues raised for decision and the court would not be inclined to interfere with her discretionary rulings - See paragraphs 56 to 62.

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Where application based on informant's statements - Merino was found shot dead - The accused was convicted of first degree murder - A considerable proportion of the evidence probative of the accused's involvement in the Merino murder came from intercepted private communications obtained by police pursuant to a number of authorizations with respect to Neill's kidnapping and murder - The accused appealed, asserting that the trial judge erred in refusing to allow what was referred to as "amplification evidence" on the admissibility of the wiretap evidence and she further erred in ruling the wiretap evidence admissible - The accused challenged the credibility and reliability of the informants and the affiants and alleged deficiencies in the process - The British Columbia Court of Appeal dismissed the appeal - The court agreed with the conclusions of the trial judge regarding the validity of the authorizations - Even if there were deficiencies in the information that came from the informants, there was still a sufficient basis in other information set out in the affiant's affidavit to underpin a finding that Neill had been murdered, that the accused and another were legitimate suspects and that there was a sound basis for authorizing the interception of their private communications to further the investigation of the crimes listed in the initial authorization - See paragraphs 23 to 50.

Criminal Law - Topic 5277

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Admissibility - General - Merino was found shot dead - The accused was convicted of first degree murder - A considerable proportion of the evidence probative of the accused's involvement in the Merino murder came from intercepted private communications obtained by police pursuant to a number of authorizations with respect to Neill's kidnapping and murder - The accused appealed, asserting that the trial judge erred in her editing of certain intercepts - The British Columbia Court of Appeal dismissed the appeal - Any excised portions were of lesser relevance and had the capacity to reflect badly on the accused - With respect to any discrepancies or "incomplete thoughts", the trial judge gave appropriate and fair direction to the jury - See paragraphs 51 to 55.

Criminal Law - Topic 5277

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Admissibility - General - [See Criminal Law - Topic 5274.1 ].

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper or abusive questioning - What constitutes - Merino was found shot dead - The accused was convicted of first degree murder - The accused appealed, asserting that the cross-examination of the accused by Crown counsel at trial was improper in that it violated the presumption of innocence by suggesting that there was an onus on the accused to establish the details of an alibi - The British Columbia Court of Appeal dismissed the appeal - The Crown's cross-examination did not exceed permissible bounds, and the comments of the trial judge made it clear to the jury that the onus of proof was not reversed - See paragraphs 97 to 103.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - Merino was found shot dead - The accused was convicted of first degree murder - The accused appealed, asserting that the trial judge erred in ruling admissible the evidence of the podiatrist, Kelly - Having reviewed security video footage of the shooter and a "person of interest" who was seen in the area on the day of the shooting, as well as six known video images of the accused, Kelly testified that there was a "very strong likeness" between the accused's gait and that of the shooter, and also between the accused's gait and that of the person of interest - The accused challenged the reliability of Kelly's evidence on the following grounds: "he has not performed blind testing or established an error rate for his conclusions; his opinions on gait comparison have not been peer reviewed and do not employ a scientific method; and there is no scientific basis for the six-point qualitative scale employed" - The British Columbia Court of Appeal dismissed the appeal - Kelly's evidence met the criteria for the admissibility of expert opinion evidence as set out in R. v. Mohan (SCC 1994): "1) Relevance; 2) Necessity in assisting the trier of fact; 3) The absence of any exclusionary rule; and 4) A properly qualified expert" - It was primarily the requirement for a properly qualified expert that was in issue on this appeal - The court agreed that "forensic applications of podiatry and gait analysis do not render the practice 'novel'" - Kelly's fitness to give opinion evidence was questioned on the grounds that he "had a profit motive, charged high fees, engaged in improper billing practices, and was argumentative as a witness and not impartial" - These matters were properly considerations for Kelly's credibility - They were matters of weight rather than of admissibility - Further, the forensic gait analysis provided by Kelly fell into the category of expert opinion evidence based on "specialized knowledge gained through experience and specialized training" - The trial judge did not err in failing to consider indicia of scientific validity such as peer review, rate of error and adherence to a scientific method - These factors had limited relevance where a witness's expertise was gained over a period of years through observation and experience in the professional realm - Finally, Kelly's evidence that there was a "very strong likeness" in gait between the individuals shown on the video footage was merely a distillation of his factual observations, and he did not usurp the role of the trier of fact by offering a conclusion on the ultimate issue of the identity of the shooter - See paragraphs 63 to 96.

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that witness is an expert - [See Evidence - Topic 7000.4 ].

Evidence - Topic 7016

Opinion evidence - Expert evidence - General - Admissibility v. weight - [See Evidence - Topic 7000.4 ].

Evidence - Topic 7018

Opinion evidence - Expert evidence - General - Special knowledge and experience - What constitutes - [See Evidence - Topic 7000.4 ].

Cases Noticed:

R. v. Siniscalchi (F.) (2010), 291 B.C.A.C. 14; 492 W.A.C. 14; 2010 BCCA 354, refd to. [para. 34].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), affd. [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 34].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 34].

R. v. Wilson (N.R.) (2011), 305 B.C.A.C. 254; 515 W.A.C. 254; 2011 BCCA 252, refd to. [para. 37].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 39].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1 (C.A.), affd. [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [para. 53].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 62].

R. v. McCotter (W.J.) (2012), 315 B.C.A.C. 290; 535 W.A.C. 290; 2012 BCCA 54, refd to. [para. 62].

R. v. Misir (M.) (2001), 150 B.C.A.C. 52; 245 W.A.C. 52; 2001 BCCA 202, refd to. [para. 62].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 66].

Daubert v. Merrell Dow Pharmaceuticals Inc. (1993), 509 U.S. 579; 113 S. Ct. 2786 (Sup. Ct.), refd to. [para. 68].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 68].

R. v. Dean, [2004] EWCA Crim 319, refd to. [para. 69].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 71].

Reference Re Criminal Code, s. 293, [2011] B.C.T.C. Uned. 1588; 2011 BCSC 1588, refd to. [para. 71].

United City Properties Ltd. v. Tong, [2010] B.C.T.C. Uned. 111; 2010 BCSC 111, refd to. [para. 71].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 68 C.C.C.(2d) 394, refd to. [para. 76].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 81].

R. v. Ciantar, [2005] EWCA Crim 3559, refd to. [para. 87].

R. v. Otway, [2011] EWCA Crim 3, consd. [para. 87].

R. v. Luttrell, [2004] EWCA Crim 1344, refd to. [para. 89].

Counsel:

J.M.P. Firestone, for the appellant;

M.K. Levitz, Q.C., for the respondent.

This appeal was heard at Vancouver, B.C., on January 9 and 10, 2012, by Finch, C.J.B.C., Hall and Hinkson, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Hall, J.A., on April 2, 2012.