R. v. Mapara (S.),

• Jurisdiction: British Columbia
• Judge: Finch
• Neutral Citation: 2004 BCCA 310
• Citation: (2004), 199 B.C.A.C. 280 (CA),2004 BCCA 310,199 BCAC 280,(2004), 199 BCAC 280 (CA),199 B.C.A.C. 280
• Date: 13 May 2004
• Court: Court of Appeal (British Columbia)

R. v. Mapara (S.) (2004), 199 B.C.A.C. 280 (CA);

    326 W.A.C. 280

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JN.029

Regina (respondent) v. Sameer Mapara (applicant/appellant)

(CA28271; 2004 BCCA 310)

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

British Columbia Court of Appeal

Finch, C.J.B.C.

June 4, 2004.

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 tried 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. Mapara applied for leave to appeal to the Supreme Court of Canada, and applied for judicial interim release pending determi­nation of this application.

The British Columbia Court of Appeal, per Finch, C.J.B.C., in a decision reported at 186 B.C.A.C. 1; 306 W.A.C. 1, dismissed the application. The court stated that Mapara was not barred from reapplying for judicial interim release if his leave application to the Supreme Court of Canada was granted. The Supreme Court dismissed Mapara's applica­tion for leave to appeal. Subsequently, Mapara's co-accused, Chow, was granted leave to appeal his conviction to the Supreme Court of Canada. Mapara then applied to the Supreme Court for reconsider­ation of its refusal to grant leave. The Supreme Court of Canada granted Mapara leave to appeal. Mapara applied for judicial interim release pending his appeal to the Supreme Court of Canada.

The British Columbia Court of Appeal, per Finch, C.J.B.C., dismissed the application.

Editor's Note: for other related cases, see 149 B.C.A.C. 316; 244 W.A.C. 316; 156 B.C.A.C. 138; 255 W.A.C. 138, and 182 B.C.A.C. 88; 300 W.A.C. 88.

Criminal Law - Topic 3303

Compelling appearance, detention and release - Interim release or detention of accused pending appeal - Detention neces­sary to ensure attendance - The accused sought leave to appeal to the Supreme Court of Canada from his first degree murder conviction - Strong community roots, no prior criminal record and com­plied with all previous bail terms in both lower courts - Support from family and friends - Employment prospects - Although discharged from bankruptcy in 2002, he remained liable for one judgment in excess of $100,000 and faced another claim in excess of $400,000 - He faced tax evasion charges for over $3.7 million and fraud charges of over $8.3 million - The British Columbia Court of Appeal, per Finch, C.J.B.C., refused bail because of the motives for him to flee - Further, his prospects for leave being granted were slim - The accused obtained leave to appeal to the Supreme Court of Canada - He reapplied for bail - The British Colum­bia Court of Appeal, per Finch, C.J.B.C., refused bail again - There remained signifi­cant motives for the accused to flee - See paragraphs 11 to 17.

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending appeal - Detention neces­sary in the public interest - The accused sought leave to appeal to the Supreme Court of Canada from his first degree murder conviction - The British Columbia Court of Appeal, per Finch, C.J.B.C., dismissed the accused's bail application - The Supreme Court of Canada granted him leave to appeal - The accused reapplied for bail pending his appeal - He argued that the granting of leave to appeal by Supreme Court of Canada improved his case for release and should be virtually conclusive respecting the merits of the appeal - It would be unnecessary and improper to assess the merits of that appeal - It was awkward to ask a judge of the Court of Appeal to rule on the strength of an appeal from that court to the Supreme Court of Canada - The British Columbia Court of Appeal, per Finch, C.J.B.C., rejected the argument - Leave to appeal was a material change in circumstances - "Statistically speaking", it made the prospects that the accused's appeal may be successful better -However, s. 679(3) of the Criminal Code expressly stated that the same criteria applied in the case of an appeal against conviction to the court of appeal and an appeal or application for leave to appeal to the Supreme Court of Canada - The absence of reasons from the Supreme Court explaining why the accused was granted leave to appeal made any attempt to equate that decision with the presence of strong grounds of appeal entirely specula­tive - See paragraphs 22 to 27.

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending appeal - Detention neces­sary in the public interest - The accused sought leave to appeal to the Supreme Court of Canada from his first degree murder conviction - Strong community roots, no prior criminal record and com­plied with all previous bail terms in both lower courts - Support from family and friends - Employment prospects - Although discharged from bankruptcy in 2002, he remained liable for one judgment in excess of $100,000 and faced another claim in excess of $400,000 - He faced tax evasion charges for over $3.7 million and fraud charges of over $8.3 million - The British Columbia Court of Appeal, per Finch, C.J.B.C., refused bail - The accused obtained leave to appeal to the Supreme Court of Canada - He reapplied for bail - The British Columbia Court of Appeal, per Finch, C.J.B.C., refused bail again where, inter alia, the accused failed to establish that his detention was not necessary in the public interest - He had not established very strong grounds of appeal - He had not brought himself within the "rarest of cir­cumstances" where it was in the public interest to grant a person convicted of first degree murder bail pending appeal - See paragraphs 27 to 39.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending appeal - Release pending appeal - [See Criminal Law - Topic 3303 and both Criminal Law - Topic 3304 ].

Cases Noticed:

R. v. Wasfi (G.) et al., [2001] B.C.T.C. 1815; 2001 BCSC 1815, refd to. [para. 3].

R. v. Wasfi (G.) et al., [2000] B.C.J. No. 2754; 2000 CarswellBC 2708; 2000 BCSC 1766, refd to. [para. 3].

R. v. McPherson (J.G.) (1999), 130 B.C.A.C. 254; 211 W.A.C. 254; 140 C.C.C.(3d) 316; 1999 BCCA 638, refd to. [para. 10].

R. v. Crockett (D.) (2001), 161 B.C.A.C. 114; 263 W.A.C. 114; 2001 BCCA 707, refd to. [para. 19].

R. v. Dunbar (A.A.) (2002), 176 B.C.A.C. 299; 290 W.A.C. 299; 2002 BCCA 682, refd to. [para. 20].

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. 29].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568, refd to. [para. 29].

R. v. Ubhi (J.S.) (1996), 81 B.C.A.C. 161; 132 W.A.C. 161 (C.A.), refd to. [para. 32].

R. v. Rollocks (R). (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 32].

R. v. Chciuk (C.) (1999), 116 O.A.C. 283; 131 C.C.C.(3d) 552 (C.A.), refd to. [para. 32].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; 14 C.C.C.(3d) 385, refd to. [para. 32].

R. v. Chan (H.M.S.) et al., [2001] B.C.T.C. 831; 2001 BCSC 831, refd to. [para. 34].

R. v. D.R.C. (2004), 199 B.C.A.C. 169; 326 W.A.C. 169; 2004 BCCA 215, refd to. [para. 39].

Counsel:

G.D. McKinnon, Q.C., for the applicant;

H. Reiner, for the respondent.

This application was heard in Chambers on May 13, 2004, at Vancouver, British Colum­bia, before Finch, C.J.B.C., of the British Columbia Court of Appeal, who delivered the following judgment on June 4, 2004.