R. v. Narwal (J.S.), 2009 BCCA 410

• Judge: Mackenzie, Levine and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 30, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 410;(2009), 276 B.C.A.C. 188 (CA)

R. v. Narwal (J.S.) (2009), 276 B.C.A.C. 188 (CA);

    468 W.A.C. 188

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. OC.011

Regina (respondent) v. Jethinder Singh Narwal (appellant)

(CA034031; 2009 BCCA 410)

Indexed As: R. v. Narwal (J.S.)

British Columbia Court of Appeal

Mackenzie, Levine and Frankel, JJ.A.

September 30, 2009.

Summary:

The accused was convicted of 13 separate charges arising out of three separate kidnappings. The accused appealed on the grounds that the trial judge erred (1) in admitting into evidence a post-arrest "off the record" statement given to police, which was not contemporaneously recorded; (2) in the weight given to that statement; (3) in dealing with the testimony of unsavoury Crown witnesses; (4) in assessing the circumstantial evidence; and (5) in rendering verdicts that were unreasonable and unsupported by the evidence.

The British Columbia Court of Appeal, Mackenzie, J.A., dissenting in part, dismissed the appeal.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - An accused appealed his conviction on the basis that the trial judge inadequately cautioned herself that convicting on the basis of the evidence of an unsavoury witness would be dangerous - The trial judge stated that the witness was "an unsavoury, disreputable witness ... who has provided inconsistent and contradictory evidence. A clear and sharp Vetrovec warning is mandatory ... where [his] credibility has been impugned and his evidence is crucial to the Crown's case. ... [His] evidence must be looked at with the greatest care and caution and must be corroborated by independent confirmatory evidence which lends support to his overall testimony so as to satisfy this court that his potentially unreliable evidence can be relied on as truthful. Such independent confirmatory evidence does not have to implicate the accused directly in the crimes charged, but it must be capable of restoring the court's faith in the relevant aspects of his account" - The British Columbia Court of Appeal held that the Vetrovec warning was more than adequate - Had the judge said no more than a Vetrovec warning was required "that likely would have been sufficient" - The trial judge was also correct in finding that certain items of evidence provided independent confirmation of the unsavoury witness' testimony - See paragraphs 52 to 67.

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - An accused was advised of his right to counsel and his right to silence - He spoke with his counsel of choice - During questioning, the accused refused to answer specifics about the offences in front of the recording equipment - He offered to talk off the record - The accused and officer had an unrecorded 10-15 minute conversation in the atrium, after which the officer took notes as to his recollection of the conversation - The British Columbia Court of Appeal rejected the accused's submission that the trial judge had a duty to instruct herself that it would be dangerous to convict on the basis of the unrecorded statement - The failure to record a statement did not make the statement inherently unreliable - The absence of a recording was at the accused's request - The court stated that "if there is evidence upon which a jury could find that it had been open to the police to record an interview/interrogation, and that the police deliberately chose not to do so, then the jury should be instructed that, if they make such a finding, then that would be an important factor for them to consider in deciding whether to accept the testimony of the police regarding the statement. Such an instruction is sufficient to ensure that the jurors keep any deliberate failure to record in mind in assessing the trustworthiness of the viva voce evidence with respect to what the accused said. There is no need to go further, and to raise this instruction to the level of telling a jury that it would be dangerous to accept that evidence." - The trial judge instructed herself to examine the unrecorded statement with care - Nothing further was required - See paragraphs 40 to 51.

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - An accused was advised of his right to counsel and his right to silence - He spoke with his counsel of choice - During questioning, the accused refused to answer specifics about the offences in front of the recording equipment - He offered to talk off the record - The accused and officer had an unrecorded 10-15 minute conversation in the atrium, after which the officer took notes as to his recollection of the conversation - The accused challenged the admissibility of the officer's testimony, arguing that "no statement made by a suspect to a police officer can be admitted into evidence in the absence of a contemporaneous electronic recording, or handwritten notes verified and signed by the suspect" and that the absence of a complete record raised a reasonable doubt as to the voluntariness of the statement - The British Columbia Court of Appeal rejected the submission, stating that "although the contemporaneous recording of a police interview/interrogation of a suspect is highly desirable, and is a practice that has been both recommended and encouraged by courts and commissions of inquiry, it is not a requirement of the common law confessions rule" - The trial judge did not err in finding that the officer's uncontradicted evidence as to the content of the conversation was sufficient to find that the unrecorded statements were voluntary - See paragraphs 36 to 39.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - An accused was advised of his right to counsel and his right to silence - He spoke with his counsel of choice - During questioning, the accused refused to answer specifics about the offences in front of the recording equipment - He offered to talk off the record - The accused and officer had an unrecorded 10-15 minute conversation in the atrium, after which the officer took notes as to his recollection of the conversation - The accused challenged the admissibility of the officer's testimony as to what was said on the grounds that (1) his statement was obtained by police trickery, violating the accused's right to silence; (2) the off the record statement was an involuntary induced statement; and (3) the lack of recording resulted in an incomplete record which gave rise to a reasonable doubt as to voluntariness - The trial judge admitted the evidence - There was no police trickery - The accused voluntarily chose to talk with the officer without any promises or inducements - The off the record conversation was the accused's idea - The fact that the officer summarized the conversation and could not record it verbatim did not render it inadmissible - The trial judge determined that the accused, who was sophisticated in dealing with police, willingly spoke off the record because he wanted to influence the investigation while maintaining plausible deniability - The trial judge rejected the submission that the accused did not understand that what he said could still be used against him - The British Columbia Court of Appeal held that the trial judge did not err in finding that going off the record did not render the statement involuntary - Mackenzie, J.A., dissenting, opined that there was an agreement that what the accused said off the record could not be used against him and that the statement should have been ruled inadmissible - See paragraphs 17 to 35.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Criminal Law - Topic 5336.1 ].

Cases Noticed:

R. v. Ford (H.) (1994), 77 O.A.C. 246; 25 C.R.R.(2d) 304 (C.A.), dist. [para. 32].

R. v. Cameron, [2002] O.J. No. 3545 (Sup. Ct.), dist. [para. 32].

R. v. Reashore (P.D.) (1999), 182 N.S.R.(2d) 1; 563 A.P.R. 1 (S.C.), dist. [para. 32].

R. v. Tran (H.H.), [1998] B.C.T.C. Uned. H56 (S.C.), dist. [para. 32].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 33].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 33].

R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 33].

R. v. Grouse (D.D.) (2004), 226 N.S.R.(2d) 321; 714 A.P.R. 321; 189 C.C.C.(3d) 357; 2004 NSCA 108, leave to appeal denied [2005] 1 S.C.R. x; 337 N.R. 192; 238 N.S.R.(2d) 400; 757 A.P.R. 400, refd to. [para. 33].

R. v. Richards (D.B.) (1997), 87 B.C.A.C. 21; 143 W.A.C. 21 (C.A.), refd to. [para. 37].

R. v. Quinn (K.) (2009), 271 B.C.A.C. 243; 458 W.A.C. 243; 2009 BCCA 267, refd to. [para. 37].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 120; 160 C.C.C.(3d) 493 (C.A.), refd to. [para. 37].

R. v. Ducharme (K.A.) (2004), 184 Man.R.(2d) 36; 318 W.A.C. 36; 182 C.C.C.(3d) 243; 2004 MBCA 29, leave to appeal refused [2004] 1 S.C.R. vii; 330 N.R. 395; 195 Man.R.(2d) 158; 351 W.A.C. 158, refd to. [para. 39].

R. v. Groat (R.) (2006), 221 B.C.A.C. 240; 364 W.A.C. 240; 205 C.C.C.(3d) 542; 2006 BCCA 27, refd to. [para. 39].

R. v. Crockett (D.) (2002), 179 B.C.A.C. 269; 295 W.A.C. 269; 170 C.C.C.(3d) 569; 2002 BCCA 658 (C.A.), refd to. [para. 39].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80; 194 C.C.C.(3d) 1 (C.A.), refd to. [para. 39].

R. v. Swanek (B.) (2005), 194 O.A.C. 155; 28 C.R.(6th) 93 (C.A.), refd to. [para. 45].

R. v. Wilson (R.H.) (2006), 213 O.A.C. 207; 210 C.C.C.(3d) 23 (C.A.), refd to. [para. 46].

R. v. Caron, 2007 QCCA 1569, refd to. [para. 48].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 53].

R. v. Tymiak (G.G.) (2009), 267 B.C.A.C. 120; 450 W.A.C. 120; 2009 BCCA 98, refd to. [para. 55].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 55].

R. v. Newman (S.J.) (2009), 286 Nfld. & P.E.I.R. 176; 883 A.P.R. 176; 2009 NLCA 32, refd to. [para. 56].

R. v. Ebrahimi (M.), [2009] B.C.A.C. Uned. 56; 2009 BCCA 285, refd to. [para. 64].

R. v. Abernathy (J.C.) (2002), 161 B.C.A.C. 247; 263 W.A.C. 247; 2002 BCCA 8, refd to. [para. 88].

R. v. Trevor (L.E.) (2006), 223 B.C.A.C. 56; 369 W.A.C. 56; 206 C.C.C.(3d) 370; 2006 BCCA 91, leave to appeal refused [2006] 2 S.C.R. xiii; 359 N.R. 392; 240 B.C.A.C. 317; 398 W.A.C. 317, refd to. [para. 88].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 106].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 111].

Counsel:

B.A. Beresh, Q.C., for the appellant;

T.R. Mitchell-Banks, Q.C., and S. Nahal, for the respondent.

This appeal was heard on April 2-3, 2009, at Vancouver, B.C., before Mackenzie, Levine and Frankel, JJ.A., of the British Columbia Court of Appeal.

On September 30, 2009, the judgment of the Court was delivered and the following opinions were filed:

Frankel, J.A. (Levine, J.A., concurring) - see paragraphs 1 to 90;

Mackenzie, J.A., dissenting in part - see paragraphs 91 to 113.