Bari c. R.

• Jurisdiction: New Brunswick
• Court: Court of Appeal (New Brunswick)
• Judge: Daigle, Deschênes and Richard, JJ.A.
• Neutral Citation: 2006 NBCA 119
• Citation: (2006), 308 N.B.R.(2d) 247 (CA),2006 NBCA 119,308 NBR (2d) 247,215 CCC (3d) 346,[2006] NBJ No 532 (QL),308 NBR(2d) 247,(2006), 308 NBR(2d) 247 (CA),308 N.B.R.(2d) 247,[2006] N.B.J. No 532 (QL)
• Date: 07 December 2006

R. v. Bari (A.) (2006), 308 N.B.R.(2d) 247 (CA);

    308 R.N.-B.(2e) 247; 797 A.P.R. 247

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.B.R.(2d) TBEd. DE.032

Abdul Bari (appellant) v. Her Majesty the Queen (respondent)

(146/04/CA; 2006 NBCA 119)

Indexed As: R. v. Bari (A.)

New Brunswick Court of Appeal

Daigle, Deschênes and Richard, JJ.A.

December 7, 2006.

Summary:

A court composed of a judge and jury found the accused guilty of the first degree murder of his estranged wife. The accused appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - The accused was "deva­stated" after he and his wife separated - He went to see a psychiatrist - He com­municated to him his devastation and his feelings of betrayal - The accused kept harassing his wife - He was charged with criminal harassment - He pleaded guilty - At the sentencing hearing, the accused filed a report by the psychiatrist - The accused killed his wife - He was found guilty of first degree murder - Called by the Crown, the psychiatrist testified as to some of the statements that the accused made to him - That evidence was con­tained in the report presented at the earlier sentencing hearing - The report was also presented at trial - The accused appealed, arguing that s. 13 of the Charter prohibited the presentation at the first degree murder trial of the evidence from the sentencing hearing on the criminal harassment charge - The New Brunswick Court of Appeal rejected the argument and dismissed the appeal - See paragraphs 50 to 56.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - In R. v. Starr (S.C.C.), Iacobucci, J., said: "In my view, an effective way to define the rea­sonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities" - The accused, found guilty of first degree murder, appealed against his conviction arguing that the trial judge erred in not including Iacobucci, J.'s statement in her instructions to the jury on reason­able doubt - The New Brunswick Court of Appeal rejected the argument and dis­missed the appeal - See paragraphs 59 to 64.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence gener­ally - A court composed of a judge and jury found the accused guilty of first de­gree murder - The accused appealed, argu­ing that the trial judge misdirected the jury on certain key facts, thus compromising the right to a fair trial - The New Bruns­wick Court of Appeal rejected the argu­ment and dismissed the appeal - The court did not agree that the fairness of the trial was compromised to any extent by the trial judge's recitation of the facts - More im­portantly, however, the trial judge made it abundantly clear to the jury, on at least two different occasions, that they were to decide the facts of this case and that her view of the facts was subordinate to theirs - See paragraphs 57 and 58.

Evidence - Topic 1387

Relevant facts - Relevance and materiality - Identity - Motive - The accused was found guilty of the first degree murder of his estranged wife - The trial judge ad­mitted, for the truth of their contents, as necessary, reliable and relevant, the hear­say statements the victim made to her landlord and several police officers - The statements indicated that the victim was fearful of her husband because of his constant harassment and his barely veiled threat to harm her - The New Brunswick Court of Appeal upheld the evidentiary ruling and the verdict - Identity was the issue - The Crown's case was built on circumstantial evidence and part of the Crown's theory was that the accused had the opportunity and motive to kill his estranged wife - The hearsay statements were relevant and material in that the facts alleged in them were adequately related to the case made by the Crown respecting motive and identity - Although the victim's fear of the accused bore no direct rele­vance to the ultimate issue of identifi­cation, it could be relevant to that issue if it was relevant to another fact, such as motive, which in turn was directly relevant to the ultimate issue of identification - The probative value of the hearsay statements was significant and strongly supportive of the Crown's case - Finally, the trial judge did not apply incorrect principles in con­cluding that the probative value of the hearsay statements outweighed their preju­dicial effect - See paragraphs 12 to 16, 20 to 24, 35 to 41.

Evidence - Topic 1388

Relevant facts - Relevance and materiality - Identity - Opportunity - [See Evidence - Topic 1387 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 1387 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was found guilty of the first de­gree murder of his estranged wife - The trial judge admitted, for the truth of their contents, as necessary and reliable, the hearsay statements the victim made to her landlord and several police officers - The statements indicated that the victim was fearful of her husband because of his constant harassment and his barely veiled threat to harm her - The trial judge consid­ered the following factors in respect of reliability: (1) the relationship between the victim and the persons to whom she made the statements; (2) absence of any motive to fabricate on the victim's part; (3) the statements to the landlord were made in a clear and dispassionate way; (4) the state­ments to the landlord were made a few months prior to the victim's death and shortly after the uninvited accused had left her apartment; (5) the statements to the police were not accompanied with attempts to embellish, nor did the victim appear to be vindictive toward the accused despite the fact that she was upset and crying on some occasions; (6) the victim's statements were not the product of any prompting or leading questions from her landlord or from investigating officers; and (7) most of the statements made to the police, to the knowledge of the maker of the statements, could be verified for falsification purposes - The New Brunswick Court of Appeal upheld the evidentiary ruling and the ver­dict - See paragraphs 12 to 16, 25 to 34.

Evidence - Topic 4104

Witnesses - Privilege - General - Time for claiming privilege - [See Evidence - Topic 4106 ].

Evidence - Topic 4106

Witnesses - Privilege - Waiver of privilege - The accused was "devastated" after he and his wife separated - He went to see a psychiatrist - He communicated to him his devastation and his feelings of betrayal - The accused kept harassing his wife - He was charged with criminal harassment - He pleaded guilty - At the sentencing hearing, the accused filed a report by the psychia­trist - The accused killed his wife - He was found guilty of first degree murder - Called at trial by the Crown, the psychia­trist testified as to some of the statements that the accused made to him - That evi­dence was contained in the report pre­sented at the earlier sentencing hearing - The report was also presented at trial - Admissibility of the psychiatrist's testi­mony and report was addressed - The accused did not invoke privilege at that point - The accused appealed, invoking privilege and saying that the psychiatrist's evidence should not have been admitted - The New Brunswick Court of Appeal dismissed the appeal - The accused had waived privilege - He had also not raised privilege when admissibility was addressed - He should not now be entitled to argue inadmissibility on the basis of case-by-case privilege - See paragraphs 42 to 49.

Cases Noticed:

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, consd. [para. 16].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 18].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 46 O.R.(3d) 161 (C.A.), refd to. [para. 18].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 19].

R. v. A.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 21].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 21].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321, refd to. [para. 21].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 26].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 26].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 195 C.C.C.(3d) 225; 2005 SCC 23, refd to. [para. 26].

R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), consd. [para. 26].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 35 O.R.(3d) 35 (C.A.), consd. [para. 37].

Bone et al. v. Person et al. (2000), 145 Man.R.(2d) 85; 218 W.A.C. 85 (C.A.), consd. [para. 43].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 67 C.C.C.(3d) 289, refd to. [para. 46].

Slavutych v. Board of Governors of the University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587; 38 C.R.N.S. 306, refd to. [para. 46].

Slavutych v. Baker - see Slavutych v. University of Alberta.

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, consd. [para. 52].

R. v. Noël (C.), [2002] 3 S.C.R. 433; 295 N.R. 1; 2002 SCC 67, consd. [para. 52].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, consd. [para. 52].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 59].

R. v. Kerton (R.E.) et al. (2002), 250 N.B.R.(2d) 177; 650 A.P.R. 177; 2002 NBCA 40, consd. [para. 61].

R. v. Durette (D.) (2002), 247 N.B.R.(2d) 149; 641 A.P.R. 149; 2002 NBCA 15, refd to. [para. 61].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60; 34 C.R.(6th) 271 (C.A.), consd. [para. 63].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 13 [para. 50].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), pp. 40 [para. 36]; 205 [para. 47].

Watt, David, Ontario Specimen Jury In­structions (2003), Final Charge 13, p. 101 [para. 60].

Counsel:

Brian D. Munro, for the appellant;

William J. Corby, Q.C., and Hilary J.A. Drain, Q.C., for the respondent.

This appeal was heard on June 21, 2006, by Daigle, Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal.

The decision of the Court of Appeal was delivered in both official languages on De­cember 7, 2006, by Deschênes, J.A.