R. v. Mapara (S.) et al., (2003) 182 B.C.A.C. 88 (CA)

• Judge: Donald, Saunders and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 17, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 182 B.C.A.C. 88 (CA);2003 BCCA 248

R. v. Mapara (S.) (2003), 182 B.C.A.C. 88 (CA);

    300 W.A.C. 88

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. MY.014

Regina (respondent) v. Simon Kwok Chow (applicant)

(CA028280; 2003 BCCA 248)

Indexed As: R. v. Mapara (S.) et al.

British Columbia Court of Appeal

Donald, Saunders and Low, JJ.A.

May 2, 2003.

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. His new trial was now underway in Supreme Court. Mapara, Chow and Shoemaker were con­victed by a judge and jury as charged. Map­ara and Chow appealed against convic­tion. Shoemaker did not appeal his convic­tion.

The British Columbia Court of Appeal, in a decision reported in 179 B.C.A.C. 92; 295 W.A.C. 92, dismissed Mapara's and Chow's appeals. Chow subsequently applied to re-open his appeal from conviction, to present an additional argument. Judgment had not been entered.

The British Columbia Court of Appeal dismissed the application.

Editor's Note: for prior related cases, see 149 B.C.A.C. 316; 244 W.A.C. 316, and 156 B.C.A.C. 138; 255 W.A.C. 138.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - The accused sought to re-open his appeal from conviction to present an additional argument - Judgment was not yet entered - The accused had originally argued on appeal that the trial judge erred in refusing the accused a separate trial so that he could compel the testimony of a co-accused - The British Columbia Court of Appeal held that the additional evidence sought to be presented was admissible under the present intentions exception to the hearsay rule, and on the principled approach - Nevertheless, this additional evidence did not have the probative force sufficient to support a severance - It was highly improbable that the evidence would influence a jury's assessment of the ac­cused's story - The court dismissed the application.

Cases Noticed:

R. v. Mapara (S.) et al. (2003), 179 B.C.A.C. 92; 295 W.A.C. 92 (C.A.), refd to. [para. 2].

R. v. Hummel (D.) (2002), 171 B.C.A.C. 47; 280 W.A.C. 47 (Yuk. C.A.), refd to. [para. 2].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 12].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 13].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 13].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590, refd to. [para. 13].

Menzies v. Harlos (1989), 37 B.C.L.R.(2d) 249 (C.A.), refd to. [para. 17].

Counsel:

P. Leask, Q.C., for the applicant;

H.J.R. Reiner, for the respondent.

This application was heard on March 17, 2003, at Vancouver, British Columbia, before Donald, Saunders and Low, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following decision for the Court of Appeal on May 2, 2003.