R. v. Besharah (S.S.), (2010) 343 Sask.R. 202 (CA)

• Jurisdiction: Saskatchewan
• Judge: Vancise, Lane and Smith, JJ.A.
• Neutral Citation: 2010 SKCA 2
• Court: Court of Appeal (Saskatchewan)
• Date: 21 October 2009
• Citation: (2010), 343 Sask.R. 202 (CA),2010 SKCA 2,[2010] 7 WWR 673,251 CCC (3d) 516,72 CR (6th) 277,[2010] SJ No 8 (QL),343 Sask R 202,(2010), 343 SaskR 202 (CA),[2010] S.J. No 8 (QL),343 SaskR 202,343 Sask.R. 202

R. v. Besharah (S.S.) (2010), 343 Sask.R. 202 (CA);

    472 W.A.C. 202

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JA.028

Her Majesty the Queen, as represented by the office of the Director of Public Prosecutions (Canada) (appellant) v. Simon Sveinn Besharah (respondent)

(No. 1688; 2010 SKCA 2)

Indexed As: R. v. Besharah (S.S.)

Saskatchewan Court of Appeal

Vancise, Lane and Smith, JJ.A.

January 14, 2010.

Summary:

The accused appealed his conviction for possession of marijuana and for possession of ecstasy for the purposes of trafficking. The accused unsuccessfully argued that his s. 8 Charter rights were violated. He argued that trial fairness was affected when the trial judge required the defence to call the arresting officer as its own witness on the voir dire and then deprived the defence of the opportunity to cross-examine that officer.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 340 Sask.R. 41, allowed the appeal, set aside the verdict below and remitted the matter to the Provincial Court for a new trial. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 8364

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - [See both Criminal Law - Topic 137].

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See both Criminal Law - Topic 137].

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - [See both Criminal Law - Topic 137].

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - The accused appealed his conviction for possession of marijuana and for possession of ecstasy for the purposes of trafficking - The accused unsuccessfully argued that his s. 8 Charter rights were violated - He argued that trial fairness was affected when the trial judge required the defence to call the arresting officer as its own witness on the voir dire and then deprived the defence of the opportunity to cross-examine that officer - He argued that such a procedure was particularly grievous because the arresting officer's credibility was the primary, if not the sole, issue on the voir dire - The summary conviction appeal court judge allowed the appeal - The Saskatchewan Court of Appeal dismissed the Crown's appeal - The trial judge erred in holding that the accused had the evidential and persuasive burden in this case to establish that the police officer lacked reasonable and probable grounds for his arrest, and erred in compelling the accused to call the police officer as his own witness for this purpose, thereby denying him the right to cross-examine the officer as to his subjective grounds for the arrest - He was practically denied any effective method of challenging the credibility of this witness and the trial was unfair - The trial judge erred in placing the onus on the accused to establish the unlawfulness of his arrest - See paragraphs 36 and 37.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - The Saskatchewan Court of Appeal held that "[w]here the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police. Thus, fairness requires that the burden of proving this matter fall on the Crown and that the accused have an opportunity to challenge the police evidence by way of cross-examination. This logic applies where the police have justified a search of the accused as a search incident to arrest, whether or not the accused has also challenged the lawfulness of the arrest pursuant to s. 9 of the Charter. While it is true that search incident to a lawful arrest is an exception to the general rule that a warrantless search is prima facie unreasonable, it is for the Crown to establish that the prerequisites for the exception have been satisfied." - See paragraph 35.

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General - [See both Criminal Law - Topic 137].

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See both Criminal Law - Topic 137].

Criminal Law - Topic 5417.1

Evidence and witnesses - Witnesses - Calling Crown witness as defence witness - [See both Criminal Law - Topic 137].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 16].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 21].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 27].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 28].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 29].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 391 N.R. 132; 309 D.L.R.(4th) 139; 2009 SCC 35, refd to. [para. 30].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 31].

R. v. Gill (R.S.) (2008), 327 Sask.R. 190; 2008 SKQB 445, refd to. [para. 33].

R. v. Deacon (2006), 146 C.R.R.(2d) 140 (Ont. Sup. Ct.), refd to. [para. 34].

Counsel:

Wade McBride, for the Federal Crown;

Bob P. Hrycan, for the respondent.

This appeal was heard October 21, 2009, before Smith, Vancise and Lane, JJ.A., of the Saskatchewan Court of Appeal. Smith, J.A., delivered the following reasons for the Court of Appeal on January 14, 2010.