R. v. Sharif (I.S.), (2009) 275 B.C.A.C. 171 (CA)

• Judge: Prowse, Saunders and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 11, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 275 B.C.A.C. 171 (CA);2009 BCCA 390

R. v. Sharif (I.S.) (2009), 275 B.C.A.C. 171 (CA);

    465 W.A.C. 171

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. OC.018

Regina (respondent) v. Imran Saff Sharif (appellant)

(CA035373; 2009 BCCA 390)

Indexed As: R. v. Sharif (I.S.)

British Columbia Court of Appeal

Prowse, Saunders and Bauman, JJ.A.

September 11, 2009.

Summary:

The accused appealed from his convictions for two counts of first degree murder and five counts of attempted murder.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See Criminal Law - Topic 4683 ].

Criminal Law - Topic 4683

Procedure - Judgments and reasons for judgment - Reasons for judgment - Whether required - The accused was convicted of two counts of first degree murder and five counts of attempted murder - The accused had given a statement to police which was exculpatory in nature - At trial, the Crown had sought a ruling that the statement was voluntary, did not infringe the accused's Charter rights, and could be used in cross-examination in the event the accused testified - The trial judge found that the statement was voluntary and did not infringe the accused's Charter rights and concluded that the statement could be used in cross-examination of the accused - The judge did not deliver reasons for his ruling - The accused did not testify and the statement was not used - On appeal from his convictions, the accused complained of the absence of reasons, saying he could not know why the ruling was made - The British Columbia Court of Appeal dismissed this ground of appeal - Absent evidence that the ruling had an effect on the conduct of the defence, there was no basis upon which to complain about a ruling as to a hypothetical event that did not materialize - In any event, defence counsel at trial had advised the judge, who indicated he would provide reasons once the jury began its deliberations, that reasons were not required - See paragraphs 68 to 74 and 78.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of first degree murder and five counts of attempted murder - The charges arose from a shooting incident outside a nightclub - Mr. U. had made a videotaped statement to police under oath (K.G.B. statement) in which he named the accused as the shooter - Mr. K. had also made a K.G.B. statement, in which he stated that he saw the accused with a gun - Mr. H., a jailhouse informant who was incarcerated with the accused prior to his trial, had made a K.G.B. statement implicating the accused in a scheme to intimidate, kidnap and murder witnesses, and saying that the accused had told him that he had fired shots - At trial, Mr. U. recanted his K.G.B. statement, testifying that he did not know who the shooter was - Likewise, Mr. K. recanted his K.G.B. statement, testifying that he did not see the accused with a gun - Mr. H. did not testify at trial because he refused to take the oath - The trial judge admitted the K.G.B. statements of the three witnesses for the truth of their contents - The accused appealed from his convictions - Based on the decision in R. v. Khelawon (S.C.C.), which was released after the accused's trial, the accused argued that the trial judge erred in refusing to consider evidence extrinsic to the taking of the sworn statements of Messrs. U., K. and H. when determining whether those statements met the threshold test of reliability - The British Columbia Court of Appeal held that the trial judge did not commit any reversible error - Much of the extrinsic evidence that could have been considered by the trial judge on a Khelawon analysis would have fortified reliability, rather than the contrary, and would not have affected the conclusion on threshold reliability - See paragraphs 9 to 61 and 76.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of first degree murder and five counts of attempted murder - The charges arose from a shooting incident outside a nightclub - Mr. U. had made a videotaped statement to police under oath (K.G.B. statement) in which he named the accused as the shooter - At trial, Mr. U. recanted his K.G.B. statement, testifying that he did not know who the shooter was - The trial judge ruled that Mr. U.'s K.G.B. statement was admissible as evidence of the truth of its contents - On appeal, the accused argued that the trial judge was premature in making his ruling before cross-examination of Mr. U. - The accused submitted that this was a case in which the witness was, for practical purposes, unavailable because he had no memory of the critical events and so the ability to test the contents of the K.G.B. statement was limited - The British Columbia Court of Appeal held that although the ruling on admissibility of the K.G.B. statement would have been better considered after Mr. U.'s cross-examination, there was no reversible error - This was not a case in which a witness was unavailable for cross-examination - Mr. U. was available at the preliminary inquiry, and at the trial - The mere fact he testified he no longer remembered the details of the shooting did not make that so, and the extent of his memory, as well as the reliability of any statement he made, was a matter for determination by the jury after seeing and hearing the cross-examination - While there might be cases in which memory loss equated with an inability to cross-examine, this was not such a case - See paragraphs 22, 23, 30 and 77.

Cases Noticed:

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, consd. [para. 1].

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; 2000 SCC 40, consd. [para. 1].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 5].

R. v. Post (D.F.) (2007), 237 B.C.A.C. 208; 392 W.A.C. 208; 66 B.C.L.R.(4th) 148; 217 C.C.C.(3d) 225; 2007 BCCA 123, consd. [para. 12].

R. v. Lowe (D.A.) (2009), 274 B.C.A.C. 92; 463 W.A.C. 92; 2009 BCCA 338, refd to. [para. 13].

R. v. Blackman (L.) (2006), 218 O.A.C. 291; 84 O.R.(3d) 292; 215 C.C.C.(3d) 524 (C.A.), affd. [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 14].

R. v. Goodstoney (G.E.) (2005), 377 A.R. 75; 2005 ABQB 128, affd. (2007), 404 A.R. 60; 394 W.A.C. 60; 218 C.C.C.(3d) 270; 2007 ABCA 88, leave to appeal denied (2007), 380 N.R. 400; 460 A.R. 269; 463 W.A.C. 269 (S.C.C.), refd to. [para. 14].

R. v. Poulette (B.A.) (2008), 269 N.S.R.(2d) 314; 860 A.P.R. 314; 2008 NSCA 95, leave to appeal denied (2009), 396 N.R. 392 (S.C.C.), refd to. [para. 14].

R. v. T.R. (2007), 224 O.A.C. 131; 220 C.C.C.(3d) 37; 2007 ONCA 374, refd to. [para. 14].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 27].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 28].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 28].

R. v. Devine (R.A.), [2008] 2 S.C.R. 283; 376 N.R. 297; 433 A.R. 380; 429 W.A.C. 380; 2008 SCC 36, refd to. [para. 30].

R. v. Naicker (R.N.) et al., [2006] B.C.T.C. Uned. C67; 2006 BCSC 935, refd to. [para. 52].

R. v. Naicker (R.N.) et al. (2007), 249 B.C.A.C. 145; 414 W.A.C. 145; 229 C.C.C.(3d) 187; 2007 BCCA 608, leave to appeal denied (2008), 386 N.R. 399; 271 B.C.A.C. 319; 458 W.A.C. 319, refd to. [para. 52].

R. v. Sauvé (J.) et al., 1996 CarswellOnt 1295 (Gen. Div.), revd. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 54].

R. v. Trudel - see R. v. Sauvé (J.) et al.

R. v. Scott (J.M.) (2004), 228 N.S.R.(2d) 203; 723 A.P.R. 203; 191 C.C.C.(3d) 183; 26 C.R.(6th) 145; 2004 NSCA 141, refd to. [para. 54].

Counsel:

L. Meyers, Q.C., and H. Patey, for the appellant;

A. Budlovsky, Q.C., for the respondent.

This appeal was heard on May 28 and 29, 2009, at Vancouver, B.C., before Prowse, Saunders and Bauman, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on September 11, 2009, including the following opinions:

Saunders, J.A. (Bauman, J.A., concurring) - see paragraphs 1 to 75;

Prowse, J.A. - see paragraphs 76 to 79.