R. v. Bulatci (E.), (2012) 524 A.R. 175

• Judge: Côté, Hunt and Slatter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: January 17, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 524 A.R. 175

R. v. Bulatci (E.) (2012), 524 A.R. 175; 545 W.A.C. 175 (NWTCA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AP.062

Her Majesty the Queen (respondent) v. Emrah Bulatci (appellant)

(A-1-AP200900015; 2012 NWTCA 6)

Indexed As: R. v. Bulatci (E.)

Northwest Territories Court of Appeal

Côté, Hunt and Slatter, JJ.A.

April 13, 2012.

Summary:

The accused appealed his conviction for first degree murder of a RCMP constable.

The Northwest Territories Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Criminal Law - Topic 5284.1 ].

Criminal Law - Topic 4313

Procedure - Jury - General - Questioning of prospective jurors - RCMP Constable Worden attempted to arrest the accused, and was searching him when the accused ran off - Constable Worden pursued the accused through the neighbourhood - The accused took a handgun out of the waistband of his pants, and fired two shots at the constable - Constable Worden continued the pursuit - The accused tripped and the constable caught up with him - They struggled and were on the ground - The accused fired two more shots - Constable Worden was hit four times: in the upper left chest and shoulder, in his pelvis, in his right thigh, and a fatal wound in the neck - The accused was charged with first degree murder - The death of Constable Worden received a great deal of media and public attention - The venue was changed - The Crown also agreed that the accused should be entitled to challenge potential jurors for cause, to ensure that the impartiality of the jurors had not been affected by pretrial publicity - The trial judge ruled that each potential juror would be asked five or six questions - In light of this narrower scope of the questions, the trial judge concluded that limiting the potential jurors to "yes or no" answers was appropriate - The accused appealed his conviction, asserting that his cross-examination of potential jurors during the challenge for cause process was improperly limited - He asserted that the potential jurors were sworn to tell the "whole truth", and that they should have had an opportunity to fully express themselves like any other witness - The Northwest Territories Court of Appeal dismissed the appeal - The trial judge had a wide discretion to supervise the challenge for cause process and his ruling on the type of answer to be called for was reasonable - Considering all of the factors in the appeal, the accused had not shown any error of law in the challenge for cause process, and it could not be said that there was any realistic risk that he was not tried by an impartial jury - See paragraphs 10 to 20.

Criminal Law - Topic 4316

Procedure - Jury - General - Challenges for cause - [See Criminal Law - Topic 4313 ].

Criminal Law - Topic 4379

Procedure - Jury charge - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - RCMP Constable Worden attempted to arrest the accused, and was searching him when the accused ran off - Constable Worden pursued the accused through the neighbourhood - The accused took a handgun out of the waistband of his pants, and fired two shots at the constable - Constable Worden continued the pursuit - The accused tripped and the constable caught up with him - They struggled and were on the ground - The accused fired two more shots - Constable Worden was hit four times: in the upper left chest and shoulder, in his pelvis, in his right thigh, and a fatal wound in the neck - The accused was convicted with first degree murder - He appealed, asserting that evidence of attempts by the accused to interfere with potential witnesses was improperly admitted at trial - Portions of the conversations intercepted at the Correctional Centre had to do with what was described as "witness tampering" - The accused was recorded as suggesting with respect to a witness who had given a statement to the police that a family member should "go fuck him up" - He also indicated that somebody should "take care of" a cab driver - The accused argued that the evidence was not probative and was highly prejudicial as tending to show general bad character on the part of the accused - The trial judge ruled that the statements were admissible where their probative value outweighed their prejudicial effect and gave a robust charge to the jury on the subject - The Northwest Territories Court of Appeal dismissed the appeal - See paragraphs 44 to 51.

Criminal Law - Topic 5284.1

Evidence - Witnesses - Interception of private communications (incl. video surveillance) - Authority for - "Resort to" clause - RCMP Constable Worden attempted to arrest the accused, and was searching him when the accused ran off - Constable Worden pursued the accused through the neighbourhood - The accused took a handgun out of the waistband of his pants, and fired two shots at the constable - Constable Worden continued the pursuit - The accused tripped and the constable caught up with him - They struggled and were on the ground - The accused fired two more shots - Constable Worden was hit four times: in the upper left chest and shoulder, in his pelvis, in his right thigh, and a fatal wound in the neck - The accused was convicted with first degree murder - He appealed, challenging the introduction into evidence of certain communications he had with members of his family in a secure visiting room at the North Slave Correctional Centre - He argued that the authorization to intercept communications did not extend to permitting the interception of communications in the Correctional Centre - The authorization did not mention any detention centre, even though it should have been obvious to the police that he would eventually be held at the North Slave Correctional Centre in Yellowknife - He argued that the Crown should not be entitled to rely on the "used or resorted to" provision in clause 4(e) of the authorization - The trial judge disagreed, and held that the interception was authorized by the "used or resorted to" provision - Alternatively, he concluded that the evidence should not be excluded under s. 24(2) of the Charter, even if there was a breach - The Northwest Territories Court of Appeal dismissed the appeal - Slatter and Côté, JJ.A., agreed with the trial judge that the interception was authorized by the "used or resorted to" provision - See paragraphs 21 to 43 - Hunt, J.A., held that the interception of the accused's conversation in the detention facility breached his s. 8 Charter right to be secure against unreasonable search and seizure - However, Hunt, J.A., deferred to the trial judge's view that the evidence was admissible under s. 24(2) of the Charter - In the result, the court held that the trial judge did not err in admitting these conversations - See paragraphs 54 to 84.

Criminal Law - Topic 5295.3

Evidence - Witnesses - Admissibility of private communications - Admissible interceptions - Under "resort to" clause - [See Criminal Law - Topic 5284.1 ].

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - General - [See Criminal Law - Topic 4399.9 ].

Cases Noticed:

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 9].

R. v. Barnes (M.) (1999), 124 O.A.C. 157; 46 O.R.(3d) 116; 138 C.C.C.(3d) 500 (C.A.), refd to. [para. 9].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 63 C.C.C.(3d) 193, refd to. [para. 20].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 20].

R. v. Hubbert (1975), 11 O.R.(2d) 464; 29 C.C.C.(2d) 279 (C.A.), refd to. [para. 20].

R. v. Dhillon (G.S.) (2001), 157 B.C.A.C. 124; 256 W.A.C. 124; 158 C.C.C.(3d) 353; 2001 BCCA 555, refd to. [para. 20].

R. v. Sandham (2009), 248 C.C.C.(3d) 46 (Ont. Sup. Ct.), refd to. [para. 20].

R. v. M.M., [2003] O.J. No. 5962, affd. (2007), 223 O.A.C. 308; 220 C.C.C.(3d) 74; 2007 ONCA 329, refd to. [para. 20].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1; 59 C.C.C.(3d) 225, dist. [para. 26].

R. v. Hillier (G.) (1997), 151 Nfld. & P.E.I.R. 254; 471 A.P.R. 254 (Nfld. T.D.), dist. [para. 28].

R. v. Mojtahedpour (K.) (2003), 178 B.C.A.C. 47; 292 W.A.C. 47; 171 C.C.C.(3d) 428; 2003 BCCA 22, dist. [para. 29].

R. v. Papaopoulos (2006), 152 C.R.R. (2d) 189 (Ont. Sup. Ct.), dist. [para. 31].

R. v. Earhart (B.A.) (2011), 313 B.C.A.C. 226; 533 W.A.C. 226; 2011 BCCA 490, refd to. [para. 32].

R. v. Alcantara (J.R.) (2012), 521 A.R. 143; 2012 ABQB 31, refd to. [para. 32].

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 39].

R. v. Chrisanthopoulos (2002), 217 Nfld. & P.E.I.R. 174; 651 A.P.R. 174 (Nfld. T.D.), refd to. [para. 40].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 41].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 42].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 42].

R. v. Lizotte, [1951] S.C.R. 115, refd to. [para. 44].

R. v. McKinnon (1982), 39 A.R. 283 (C.A.), refd to. [para. 44].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 45].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 45].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 48].

R. v. Davison (1974), 20 C.C.C.(2d) 424; 6 O.R.(2d) 103 (C.A.), refd to. [para. 49].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 49].

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; 116 C.C.C.(3d) 193, refd to. [para. 49].

R. v. Papalia, Monaco, Koaches, Carasin and Fisher, [1988] 2 S.C.R. 137; 87 N.R. 25; 29 O.A.C. 149; 59 C.C.C.(3d) 225, refd to. [para. 60].

R. v. Rendon (1999), 140 C.C.C.(3d) 12; 33 C.R.(5th) 311 (Que. C.A.), refd to. [para. 62].

R. v. Moore (G.P.) et al. (1993), 27 B.C.A.C. 253; 45 W.A.C. 253; 81 C.C.C.(3d) 161 (C.A.), refd to. [para. 63].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 76].

R. v. Blais (L.R.) (2004), 181 O.A.C. 81; 182 C.C.C.(3d) 39 (C.A.), refd to. [para. 79].

Counsel:

C. Greenwood and G. Boyd, for the respondent;

C.B. Davison, for the appellant.

This appeal was heard on January 17, 2012, by Côté, Hunt and Slatter, JJ.A., of the Northwest Territories Court of Appeal. The reasons for judgment reserved of the Court of Appeal were delivered on April 13, 2012 and the following opinions were filed:

Slatter, J.A. (Côté, J.A., concurring) - see paragraphs 1 to 52;

Hunt, J.A., concurring in the result - see paragraphs 53 to 84.