R. v. Ali (M.S.S.), 2015 BCCA 333

• Judge: Newbury, Chiasson and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 13, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 333;(2015), 376 B.C.A.C. 47 (CA)

R. v. Ali (M.S.S.) (2015), 376 B.C.A.C. 47 (CA);

    646 W.A.C. 47

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JL.053

Regina (respondent) v. Mohammed Saiyad Sam Ali (appellant)

(CA41724; 2015 BCCA 333)

Indexed As: R. v. Ali (M.S.S.)

British Columbia Court of Appeal

Newbury, Chiasson and Stromberg-Stein, JJ.A.

July 22, 2015.

Summary:

The accused was released on a recognizance of bail for eight charges of assault, extortion, and unlawful confinement. As a result of police surveillance, the accused was charged with 21 counts of failing to comply with his recognizance. He was convicted of 19 counts and sentenced to one day on each count concurrent in addition to time served (four months and 11 days). He did not dispute that he had violated the no-contact condition, but appealed the 18 convictions relating to violations of the house-arrest condition. At issue was: 1. did the judge err by failing to analyze each count separately respecting the sufficiency of the identification evidence; 2. were the judge's reasons sufficient on the identification evidence; 3. did the judge err in concluding that there was sufficient evidence of violations of the recognizance; and 4. did the judge err by holding that the Crown bore the burden of disproving the applicability of exceptions to the accused's recognizance beyond a reasonable doubt?

The British Columbia Court of Appeal dismissed the appeal. The court held that: 1. the judge adequately individualized his analysis to each count through his summary of the evidence relating to each count and his general analysis of the identification issue; 2. the judge's reasons were adequate; 3. the judge's assessment of the evidence and inferences drawn from the evidence, namely, that the accused's activities did not fall within the exceptions to his house-arrest condition, were reasonable and entitled to deference; and 4. the judge erred by holding that the Crown bore the burden of disproving the applicability of exceptions beyond a reasonable doubt, but this error favoured the accused and did not affect the result.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - See paragraphs 1 to 17.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - See paragraphs 11 to 17.

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - See paragraphs 26 to 30.

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - See paragraphs 1 to 17.

Criminal Law - Topic 6951

Recognizances - Enforcement - Evidence - See paragraphs 18 to 30.

Cases Noticed:

R. v. M.E-H. (2015), 368 B.C.A.C. 89; 633 W.A.C. 89; 2015 BCCA 54, refd to. [para. 13].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 13].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 13].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, 2002 SCC 27, refd to. [para. 14].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 14].

R. v. Miazga (S.) et al. (2014), 359 B.C.A.C. 197; 615 W.A.C. 197; 2014 BCCA 312, refd to. [para. 15].

R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321, refd to. [para. 28].

R. v. Goleski (G.A.) (2015), 467 N.R. 1; 365 B.C.A.C. 1; 627 W.A.C. 1; 2015 SCC 6, affing. (2014), 352 B.C.A.C. 142; 601 W.A.C. 142; 2014 BCCA 80, refd to. [para. 29].

Counsel:

M. Klein, for the appellant;

M. Brundrett, for the respondent.

This appeal was heard at Vancouver, B.C., on May 13, 2015, by Newbury, Chiasson and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. Stromberg-Stein, J.A., delivered the following decision for the court on July 22, 2015.