R. v. Bhullar (J.S.), (2011) 311 B.C.A.C. 163 (CA)

• Judge: Newbury, Groberman and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 07, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 311 B.C.A.C. 163 (CA);2011 BCCA 395

R. v. Bhullar (J.S.) (2011), 311 B.C.A.C. 163 (CA);

    529 W.A.C. 163

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. OC.015

Regina (respondent) v. Jagjit Bhullar (appellant)

(CA036708; 2011 BCCA 395)

Indexed As: R. v. Bhullar (J.S.)

British Columbia Court of Appeal

Newbury, Groberman and Garson, JJ.A.

October 11, 2011.

Summary:

The accused was convicted by a jury of second degree murder. The victim was his 22-year-old nephew and adopted son. The issue for sentencing was period of parole eligibility.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. H53, sentenced the accused to life imprisonment with no eligibility to apply for parole for a period of 15 years. The accused appealed his conviction.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was convicted by a jury of second degree murder - The victim was his 22-year-old nephew and adopted son for whom the accused had a $500,000 life insurance policy - The accused appealed his conviction - The Crown tendered evidence at trial showing that the accused cheated on his income taxes and illegally employed a person who was not entitled to work in Canada - The accused argued that the trial judge had a duty to provide a limiting instruction to the jury, directing jurors that they could not use that evidence to infer that the accused was of bad character and was therefore likely to have committed the murder - Defence counsel did not request the instruction - The British Columbia Court of Appeal rejected the argument - The trial judge should have given a limiting instruction - However, there was no reasonable possibility that the jury would have acquitted the accused if the limiting instruction had been given - The verdict would necessarily have been the same - The court applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 13 to 42.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was convicted by a jury of second degree murder - A police officer provided expert evidence respecting various bloodstains that were found at the residence and on the clothing that the accuseds allegedly wore - His expert report noted that a fleece jacket had a number of diluted blood stains on it and opined that this was "consistent with washing the garment" - A senior police officer was concerned about the conclusion that the fleece jacket had been washed and believed that the conclusion should be removed from the report - The senior officer's concerns were apparently not conveyed to the officer who gave the evidence, or to the Crown - Therefore, the questionable conclusion remained in the report and the defence was unaware until after the trial that concerns respecting that conclusion had been identified - The Crown conceded that the documents in question ought to have been disclosed and that the inadvertent failure to do so violated the accused's Charter right to disclosure - The British Columbia Court of Appeal dismissed the accused's appeal - The undisclosed evidence could not have had any effect on the jury's verdict - There was other evidence establishing that the fleece jacket had been washed - The practical issue for the jury was whether the stained clothes were the accused's - He testified that they were not - Evidence of an attempt to wash the fleece was of no assistance to the jury in evaluating that issue - The non-disclosure did not affect the fairness of the trial by denying the defence the opportunity to explore lines of inquiry with witnesses or make searches for additional evidence - See paragraphs 43 to 63.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4379 ].

Cases Noticed:

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 17].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 18].

R. v. Holtam (D.J.) (2002), 168 B.C.A.C. 278; 275 W.A.C. 278; 165 C.C.C.(3d) 502; 2002 BCCA 339, dist. [para. 19].

R. v. Dupras (R.A.) (2003), 180 B.C.A.C. 32; 297 W.A.C. 32; 173 C.C.C.(3d) 55; 2003 BCCA 124, dist. [para. 19].

R. v. Walizadah (Z.) (2007), 227 O.A.C. 5; 223 C.C.C.(3d) 28; 2007 ONCA 528, dist. [para. 19].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 29].

R. v. Dorfer (F.S.) (2010), 293 B.C.A.C. 300; 496 W.A.C. 300; 262 C.C.C.(3d) 59; 2010 BCCA 440, refd to. [para. 30].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 41].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 82 C.C.C.(3d) 310, refd to. [para. 42].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 46].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 48].

R. v. Creamer (E.P.) (1995), 57 B.C.A.C. 62; 94 W.A.C. 62; 97 C.C.C.(3d) 108 (C.A.), refd to. [para. 48].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 48].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 49].

Counsel:

Joseph J. Blazina, for the appellant;

Jennifer Duncan, for the respondent.

This appeal was heard on September 7, 2011, at Vancouver, British Columbia, before Newbury, Groberman and Garson, JJ.A., of the British Columbia Court of Appeal. Groberman, J.A., delivered the following judgment for the Court of Appeal on October 11, 2011.