R. v. Besharah (S.S.), (2009) 340 Sask.R. 41 (QB)

• Judge: Pritchard, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 26, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 340 Sask.R. 41 (QB);2009 SKQB 257

R. v. Besharah (S.S.) (2009), 340 Sask.R. 41 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.024

Her Majesty the Queen (respondent) v. Simon Sveinn Besharah (appellant)

(2008 QB No. 262; 2009 SKQB 257)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Pritchard, J.

June 26, 2009.

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 allowed the appeal, set aside the verdict below and remitted the matter to the Provincial Court for a new trial.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [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 Saskatchewan Court of Queen's Bench allowed the appeal - The procedure to be adopted for Charter applications rested solely with the presiding judge or justice - However, the weight of authority and practice was that, if the court required the defence to call the police officer whose very actions were alleged to have violated the accused's rights, then defence counsel should be permitted to cross-examine that witness and the Crown should be restricted to examination-in-chief of that witness - Trial fairness was affected in this case - This method of proceeding denied the accused the necessary opportunity to challenge the credibility of the officer whose actions were the sole basis for his claim that his s. 8 Charter rights had been breached.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - An accused intended to make a s. 8 Charter argument - The trial judge ruled that the Crown would begin the trial proper by calling the arresting officer and it would then be up to the defence to interject when appropriate and request that the proceedings move into a voir dire on the Charter issue - When the voir dire commenced, the accused was required to call the arresting officer as his own witness - The accused's counsel was only permitted to conduct a direct examination of the officer and was prevented from cross-examining him - The Saskatchewan Court of Queen's Bench stated that, if the court required the defence to call the police officer whose very actions were alleged to have violated the accused's rights, then defence counsel should be permitted to cross-examine that witness and the Crown should be restricted to examination-in-chief of that witness - This procedure would have been particularly appropriate in this case since the Crown had already led all of its evidence on the facts relevant to the Charter challenge - It was agreed that the trial evidence was to be applied to the voir dire - In such a situation, by requiring defence counsel to be limited to direct examination of the officer, that witness was, in effect, given two opportunities to state his evidence in chief with a further opportunity to bolster both the trial direct evidence and the voir dire direct evidence when the Crown then cross-examined him on the voir dire - The procedure was clearly flawed - The advantages to the Crown and inequities to the defence were readily apparent - See paragraphs 16 and 17.

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 13 7].

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. Thompson (J.A.C.) (2008), 322 Sask.R. 64; 2008 SKQB 159, dist. [para. 4].

R. v. Coles (M.F.) (2005), 374 A.R. 234; 2005 ABPC 20, refd to. [para. 16].

R. v. Checkosis (C.V.) (1999), 176 Sask.R. 312 (Prov. Ct.), refd to. [para. 16].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289; 12 C.R.(4th) 152 (C.A.), refd to. [para. 16].

R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250; 2006 SKPC 67, refd to. [para. 16].

R. v. Stecyk (K.) (2002), 228 Sask.R. 282; 2002 SKQB 365, refd to. [para. 16].

Counsel:

Andrea Newsham, for the respondent;

Bob Hrycan, for the applicant.

This appeal was heard before Pritchard, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who released the following judgment on June 26, 2009.