R. v. Chan (C.C.(R.)) et al., (2003) 187 B.C.A.C. 214 (CA)

• Judge: Ryan, Mackenzie and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 23, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 187 B.C.A.C. 214 (CA);2003 BCCA 508

R. v. Chan (C.C.(R.)) (2003), 187 B.C.A.C. 214 (CA);

    307 W.A.C. 214

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. SE.059

Regina (respondent) v. Chi Cheong (Raymond) Chan (appellant)

(CA027385)

Regina (respondent) v. Justin Lance Perrier (appellant)

(CA027550) (2003 BCCA 508)

Indexed As: R. v. Chan (C.C.(R.)) et al.

British Columbia Court of Appeal

Ryan, Mackenzie and Thackray, JJ.A.

September 23, 2003.

Summary:

The two accused were convicted of a number of counts of breaking and entering, robbery, unlawful confinement and pos­session of stolen property. The charges arose out of three separate home invasions. Both accused appealed their convictions.

The British Columbia Court of Appeal, Ryan, J.A., dissenting, dismissed the appeals.

Editor's Note: see also a prior related case at 148 B.C.A.C. 161; 243 W.A.C. 161.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - A gang of men committed three home invasions on three separate days over a month - Perrier was charged respecting the first two incidents - Prior to trial he was convicted of robbery and break and enter respecting the last incident - Chan was charged respecting all three incidents - Identity was in issue - The Crown's theory was that both were involved in all incidents - The British Columbia Court of Appeal upheld the jury charge on similar fact evidence - It cau­tioned them to identify the perpetrators - It did not instruct them per se that if they concluded that Perrier or Chan committed one crime, they could infer on that finding alone that they committed the others - See paragraphs 41 to 74.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - The accused alleged that he was denied a fair trial because of the ineffective assist­ance of counsel - He alleged that his defence coun­sel was late in investigating alibi evidence and in giving the Crown notice of alibi - The British Columbia Court of Appeal held that the defence counsel's conduct did not fall outside the standard of reasonable­ness - The conduct was not such that the jury verdict was unreliable and there was no reasonable probability that the verdict would have been different absent the trial judge's charge regarding the timing of the notice of alibi evidence - See paragraphs 75 to 95.

Cases Noticed:

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. [paras. 15, 50].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481, refd to. [paras. 18, 50].

R. v. Lee, [1996] E.W.C.A. Crim. 59 (C.A. Crim. Div.), consd. [paras. 27, 63].

R. v. Brown, Wilson, McMillan and McClean, [1996] E.W.J. No. 2403 (C.A. Crim. Div.), consd. [paras. 27, 63].

R. v. Robinson (D.) (1994), 48 B.C.A.C. 161; 78 W.A.C. 161; 92 C.C.C.(3d) 193 (C.A.), affd. [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 66].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 90].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 97 (C.A.), refd to. [para. 93].

R. v. Strauss (D.W.) (1995), 61 B.C.A.C. 241; 100 W.A.C. 241; 100 C.C.C.(3d) 303 (C.A.), refd to. [para. 93].

R. v. Jim (G.) (2003), 185 B.C.A.C. 173; 303 W.A.C. 173 (C.A.), dist. [para. 94].

Counsel:

A.F. Brooks, for the appellant, Chi Cheong Chan;

P. Leask, Q.C., and J. Gellis, for the appellant, Justin Lance Perrier;

B. Johnstone, for the respondent.

These appeals were heard on April 8, 2003, at Vancouver, British Columbia, before Ryan, Mackenzie and Thackray, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on September 23, 2003, when the following opinions were filed:

Ryan, J.A., dissenting - see paragraphs 1 to 40;

Thackray, J.A. (Mackenzie, J.A., concur­ring) - see paragraphs 41 to 96.