R. v. Liang (V.H.),

• Judge: Bielby,Costigan,Hunt
• Neutral Citation: 2009 ABCA 2
• Citation: (2008), 446 A.R. 167 (CA),2009 ABCA 2,446 AR 167,(2008), 446 AR 167 (CA),446 A.R. 167
• Date: 28 October 2008
• Court: Court of Appeal (Alberta)

R. v. Liang (V.H.) (2008), 446 A.R. 167 (CA);

      442 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.112

Her Majesty the Queen (respondent) v. Vincent Hui Liang (appellant)

(0803-0051-A; 2009 ABCA 2)

Indexed As: R. v. Liang (V.H.)

Alberta Court of Appeal

Hunt and Costigan, JJ.A., and Bielby, J.(ad hoc)

October 28, 2008.

Summary:

The accused was convicted of being unlawfully in a dwelling house with intent to commit an indictable offence contrary to s. 349(1) of the Criminal Code and of mischief. He was originally charged with several offences including unlawfully breaking and entering a dwelling house and committing assault causing bodily harm contrary to s. 348(1)(b). He appealed, arguing that the trial judge erred in finding that an offence under s. 349(1) was included in an offence under s. 348(1)(b); that the trial judge erred in admitting into evidence a tape recording of a 911 call; and that the verdict was unreasonable.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4458.3

Procedure - Verdicts - Included offences - Inclusion in break and enter a dwelling and commit assault causing bodily harm - The Alberta Court of Appeal held that an offence under s. 349(1) of the Criminal Code (being unlawfully in a dwelling house with intent to commit an indictable offence) was included in an offence under s. 348(1)(b) (unlawfully breaking and entering a dwelling house and committing assault causing bodily harm) - See paragraphs 16 to 19.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The Alberta Court of Appeal stated that whether an offence was included in another offence was a question of law which was reviewed on the standard of correctness - See paragraph 16.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audio tapes, etc. - General principles - Admissibility, etc. - A trial judge held a voir dire into the admissibility of a tape recording of a 911 call - The caller on the tape gave the complainant's name and address - The caller said she was "having problems with her ex" and identified the accused as her "ex" - The caller said the accused was knocking at the door - Screaming and banging noises were heard on the tape - The complainant could not confirm that it was her voice on the tape - She testified that she saw the accused in her home, but she "blacked out" shortly thereafter and could not remember what happened afterwards - The Crown did not call a witness to authenticate the tape or confirm when it was recorded - The trial judge found that the circumstances of the call were not conducive to fabrication or concoction - She found that the complainant made the call and it was made on the night in question - Crown counsel asked the trial judge to consider the tape for the truth of its contents - The trial judge ruled that she was unable to accept the unsworn tape "in favour of sworn testimony at trial ... to the extent that there may be a conflict" - The tape was a piece of evidence that she would consider together with all of the evidence - The accused did not testify - On appeal, the accused submitted that the tape should not have been admitted without evidence from its maker as to its accuracy - The Alberta Court of Appeal rejected the submission - See paragraphs 7 to 11 and 20 and 21.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audio tapes, etc. - General principles - Admissibility, etc. - The Alberta Court of Appeal held that it was not necessary to establish either the integrity of a tape or a speaker's identity before a tape could be admitted - A video tape was admissible once it was established that the tape was not altered or changed and it depicted the scene of the crime - See paragraph 21.

Cases Noticed:

R. v. McDowell, [1977] 1 W.W.R. 97; 1 A.R. 579 (C.A.), dist. [para. 17].

R. v. Miller, [1948] 1 W.W.R. 1093, 91 C.C.C. 270 (Alta. C.A.), refd to. [para. 18].

R. v. Andres (H.H.) (2003), 339 A.R. 334; 312 W.A.C. 334; 2003 ABCA 333, refd to. [para. 20].

R. v. Charette, [1980] 1 S.C.R. 785; 14 C.R.(3d) 191; 110 D.L.R.(3d) 71; 33 N.R. 158; 51 C.C.C.(2d) 350, affing. (1977), 33 N.R. 161; 80 D.L.R.(3d) 430; 17 O.R.(2d) 465; 37 C.C.C.(2d) 497 (C.A.), refd to. [para. 21].

R. v. Parsons, Charette et al. - see R. v. Charette.

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1; 111 C.C.C.(3d) 403; 141 D.L.R.(4th) 647, refd to. [para. 21].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 43 D.L.R.(4th) 424, refd to. [para. 22].

Counsel:

T.L. Couillard, for the respondent;

M.A. Moughel, for the appellant.

This appeal was heard by Hunt and Costigan, JJ.A., and Bielby, J.(ad hoc), of the Alberta Court of Appeal, on October 28, 2008. Costigan, J.A., delivered the following memorandum of decision from the bench, for the court, on the same date.