R. v. Chow (S.K.C.), (2005) 211 B.C.A.C. 31 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 27, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 211 B.C.A.C. 31 (SCC);2005 SCC 24;251 DLR (4th) 406;[2005] SCJ No 22 (QL);[2005] CarswellBC 961;195 CCC (3d) 246;JE 2005-854;211 BCAC 31;[2005] 1 SCR 384;28 CR (6th) 21;332 NR 275

R. v. Chow (S.K.C.) (2005), 211 B.C.A.C. 31 (SCC);

    349 W.A.C. 31

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] B.C.A.C. TBEd. AP.077

Simon Kwok Cheng Chow (appellant) v. Her Majesty The Queen (respondent)

(29919; 2005 SCC 24; 2005 CSC 24)

Indexed As: R. v. Chow (S.K.C.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.

April 27, 2005.

Summary:

Mapara, Chow, Wasfi and Shoemaker were jointly charged with first degree murder. Wasfi successfully applied for a severance at the conclusion of the Crown's case. Chow and Mapara were denied severance. Mapara, Chow and Shoemaker were convicted by a judge and jury. Mapara and Chow appealed their convictions.

The British Columbia Court of Appeal, in a judgment reported (2003), 179 B.C.A.C. 92; 295 A.P.R. 92; 2003 BCCA 131, dismissed the appeals. Chow appealed on the grounds that intercepted communications were improperly admitted into evidence and the trial judge erred in refusing him severance.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - Mapara, Chow, Wasfi and Shoemaker were jointly charged with first degree murder - Chow sought severance on the basis that Shoemaker could have given evidence helpful to Chow's case, but as long as they were tried together, he could not compel Shoemaker to testify - Chow argued that Shoemaker's evidence would tend to exculpate him - The trial judge denied severance - The British Columbia Court of Appeal affirmed that decision - The Supreme Court of Canada agreed, stating that "separate trials for those who are alleged to have conspired or to have committed a crime in concert remain the exception and not the rule. In principle, severance will only be granted where a joint trial will work an injustice to the accused" - Both the trial judge and the Court of Appeal did not err in finding that Shoemaker's evidence had marginal weight and could not reasonably have affected the jury's verdict - See paragraphs 43 to 52.

Criminal Law - Topic 5273

Evidence and witnesses - Interception of private communications (incl. video surveillance) - "Known" person defined - Chow was convicted of murder - Eleven wiretap authorizations were obtained during a drug investigation - Calls respecting the murder were intercepted under the sixth and seventh authorizations - Chow was not named until the third authorization, based on evidence gathered under the second authorization - Chow argued that since he was "known" to police, he should have been named at the beginning - Accordingly, the evidence could not support the third authorization or others, his s. 8 Charter privacy rights were infringed and the evidence should have been excluded under s. 24(2) - The British Columbia Court of Appeal dismissed Chow's appeal - The Supreme Court of Canada held that the evidence supported the contention that Chow was not "known" when the first and second authorizations were obtained - In any event, the court agreed with the Court of Appeal that even if Chow were known, there was enough evidence independent of any prior Charter breach to justify the third and subsequent authorizations - See paragraphs 31 to 42.

Criminal Law - Topic 5295.4

Evidence and witnesses - Admissibility of private communications - Admissible interceptions - Windfall evidence - The Supreme Court of Canada stated that there was no reason advanced for revisiting a 1983 decision where it was held that "intercepted communications are admissible to prove an offence that is unrelated to the purpose for which a wiretap authorization was sought and obtained" - See paragraph 42.

Cases Noticed:

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359, refd to. [para. 10].

R. v. Torbiak and Gillis (1978), 40 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 21].

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 32].

R. v. Commisso, [1983] 2 S.C.R. 121; 49 N.R. 26, refd to. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 185(1)(e) [para. 33].

Counsel:

Peter Leask, Q.C., and Jeremy Gellis, for the appellant;

Henry J.R. Reiner, Q.C., for the respondent.

Solicitors of Record:

Leask Bahen, Vancouver, B.C., for the appellant;

Ministry of the Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard on December 16, 2004, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On April 27, 2005, Fish, J., delivered the following judgment in both official languages for the Court.