R. v. Wilder (D.M.), 2006 BCCA 123

• Judge: Southin, Rowles and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 14, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 123;(2006), 220 B.C.A.C. 255 (CA);2006 BCCA 1

R. v. Wilder (D.M.) (2006), 220 B.C.A.C. 255 (CA);

    362 W.A.C. 255

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JA.037

Regina (respondent) v. Dara M. Wilder (appellant)

(CA031910; 2006 BCCA 1; 2006 BCCA 123)

Indexed As: R. v. Wilder (D.M.)

British Columbia Court of Appeal

Southin, Rowles and Ryan, JJ.A.

January 3, 2006 and March 14, 2006.

Summary:

The accused was charged with eight counts of fraud and two counts of possession of money and property obtained by crime, contrary to ss. 380(2)(a) and 254 of the Criminal Code. One count of each charge was stayed before trial.

The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. G49, reversed its own previous decision and held that information obtained by Revenue Canada auditors from the accused under the compulsory provisions of the Income Tax Act prior to the commencement of the criminal investigation was inadmissible in the prosecution of the accused for the Criminal Code offences in the indictment. The accused's s. 7 Charter right against self-incrimination was denied. Thus all the "taxpayer information" relied upon by the Crown was ruled inadmissible. The accused made a "no evidence" motion, which was granted and the accused was acquitted. The Crown appealed.

The British Columbia Court of Appeal, in a decision reported at 132 B.C.A.C. 122; 215 W.A.C. 122, allowed the appeal, set aside the acquittal and ordered a new trial.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 1840, convicted the accused on seven counts of fraud and one count of possession of monies obtained by fraud. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: there are numerous prior decisions involving these parties.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with, inter alia, several counts of fraud involving a tax scheme - The accused applied to exclude evidence of documents seized under the Income Tax Act and documents seized under a search warrant issued under that Act - The evidence derived from the documents was essential to the Crown's case - The majority of the seized documents did not come directly from the accused - It was common ground that the items that were seized pursuant to the search warrant were seized in breach of s.8 of the Charter based on Baron v. Canada (SCC) - The trial judge admitted the evidence - He concluded that the accused was charged with a very serious crime involving a large amount of money - Excluding the documents, would bring the administration of justice into disrepute - The British Columbia Court of Appeal held that there was no error in this conclusion - See paragraphs 28 to 36.

Evidence - Topic 1526

Hearsay rule - Hearsay rule exceptions and exclusions - General - Testimony given in previous proceedings - The Crown applied under s. 715(1) of the Criminal Code to admit hearsay evidence from Gagnon and Breitzman, who had testified at the accused's first trial but were currently absent from Canada and/or too ill to testify - The Crown argued that there was no evidence that the accused was denied an opportunity to cross-examine Breitzman or Gagnon at the first trial and that it would not be unfair to the accused to admit their prior testimony - The trial judge admitted the evidence - The British Columbia Court of Appeal dismissed the accused's appeal - There was no reason for the trial judge to exercise his residual discretion under s. 715 to not admit the evidence - See paragraphs 45 and 46.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The Crown applied to admit hearsay evidence from Russ at the accused's trial as a principled exception to the hearsay rule - Russ had testified at the trial of co-accused on the same indictment - Although the accused had not cross-examined Russ, he was cross-examined by four experienced lawyers over six days in that proceeding - Russ was deceased -The trial judge admitted the evidence as Russ' evidence was material and not available from another source - Given, his death, Russ' prior testimony was reasonably necessary - The British Columbia Court of Appeal held that the trial judge's conclusion that Russ's evidence was admissible as a principled exception to the hearsay rule was correct - See paragraphs 70 to 76.

Cases Noticed:

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510, refd to. [para. 21].

R. v. Ling (C.K.) (2000), 144 B.C.A.C. 92; 236 W.A.C. 92; 149 C.C.C.(3d) 127; 2000 BCCA 562, refd to. [para. 22].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 36].

R. v. Ling (C.K.), [2002] 3 S.C.R. 814; 295 N.R. 273; 173 B.C.A.C. 161; 283 W.A.C. 161, refd to. [para. 40].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1, refd to. [para. 40].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 68 C.R.(3d) 193, refd to. [para. 46].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [paras. 57, 73].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 73].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 73].

Counsel:

D. Wilder, appearing in person;

L. Smith and V.M. Kenda, for the respondent/Crown.

This appeal was heard on November 21-25, 2005, at Vancouver, British Columbia, by Southin, Rowles and Ryan, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered on January 3, 2006, and the following opinions were filed:

Southin, J.A. - see paragraphs 1 to 69;

Rowles, J.A. (Ryan, J.A., concurring) - see paragraphs 70 to 77.

Supplementary reasons were delivered by the court on March 14, 2006.