COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Khan, |
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2008 BCCA 63 |
Date: 20080208
Docket: CA034147
Between:
Regina
Respondent
And
Jasim Khan
Appellant
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Before: |
The Honourable Madam Justice Levine |
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The Honourable Madam Justice Kirkpatrick |
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The Honourable Mr. Justice Tysoe |
Oral Reasons for Judgment
| I. Donaldson, Q.C. |
Counsel for the Appellant |
| P. Eccles |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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1 February 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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8 February 2008 |
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[1] KIRKPATRICK, J.A.: Jasim Khan appeals from his conviction in the Supreme Court on 25 January 2006, following his trial before a judge alone, for possession of cocaine for the purpose of trafficking and trafficking in cocaine, contrary to s. 5(2) and (1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] The background facts are not disputed.
[3] In mid-June 2003, the Delta Police received information from a reliable source that an East Indian male known as "Jas" was trafficking in cocaine and marihuana. The source indicated that Jas would take orders through a specific telephone number and then deliver the ordered drugs. The source described Jas by age, height and weight, and also described the make, model, colour and license plate number of the car used by Jas in delivering drugs. The source also provided two addresses. A license plate check revealed a vehicle description that matched the informant's information and the name of Jasim Khan with an address provided by the source.
[4] The police set up a sting operation. On 15 July 2003, Constable Cardinal telephoned the number given by the source. Constable Cardinal testified as to the following conversation, as paraphrased by the trial judge:
[5] The officer who made the telephone calls that afternoon was an Officer Cardinal. He confirmed the information that had been relayed to him by Officer Chodat. As I mentioned, his role in the operation was to make the telephone calls, which began at approximately one o’clock in the afternoon on the 15th of July 2003. No objection has been taken to the conversation, which I noted in this fashion. Cardinal makes a telephone call to the telephone number and says, “Is this Jas?” The answer, “Yeah, who’s this?” Cardinal: “Mark. Are you delivering?” Jas: “Yeah. How did you get my number?” Answer: “From Ray, an older white guy about 50 at 129th and [108th].” Jas: “Yeah, what do you need?” Answer: “Up. I need a 40 rock.” These are street terms for $40 of cocaine. Continuing the conversation. Jas: “Okay, where are you?” Cardinal: “I am at the bowling alley at 84th and 120th in the rear lot.” Jas: “Okay, I’ll be there in 10 to 15 minutes.” Cardinal: “What are you [in]?” Jas: “No offence, but I’m not telling you. What are you wearing?” Cardinal: "I'm in blue jeans and a blue hoody.” Jas: “Okay. I’ll walk up to you and you’ll know it’s me.” Cardinal said he made a further call at 13 minutes after 1:00 to the same number and the same voice answered. Cardinal asked, “Is this Jas?” Jas: “Yeah.” Cardinal: “It’s Mark. Are you still coming?” Answer: “Yeah, I’m seven minutes away.” At 13:22 hours Cardinal telephoned the same telephone number and said, “Jas, it’s Mark. Where are you?” He said the same voice answered. “I am at 72nd and the George. Is that okay? I’m still coming. Traffic’s really bad.” Cardinal: “Yeah, just a barking dog here. I’m still here.”
[5] The trial judge then described the arrest:
[6] Cardinal said he was behind a dumpster in behind the bowling alley. He said a dark-skinned gentleman appeared in the bowling alley wearing blue slacks, a white T-shirt and tennis shoes and was looking around and gave a call whistle. Cardinal was in uniform so he wasn’t out in the open. So he made another call which was at 13:40 hours to the same number and said: “Jas, where are you, man?” Jas: "I’m in the bowling alley parking lot. Where are you?” Cardinal: “I’m here, too, behind the dumpster taking a leak. Is that you in the white shirt and whistled a couple of times?” Jas: “Yeah, walk towards me. I’ve got a busted ankle and can’t walk too good.” He also said that while he was telephoning, he could see the gentleman, that he was on a telephone, and that he was limping. Policemen then arrested the accused, who was handcuffed, searched. No drugs were found on him. A cell phone was found and the officers then called the same number again and the cell phone in hand rang.
[6] Other officers involved in the investigation located the green Jeep Cherokee about one block from the location at which Mr. Khan was arrested. Khan's long-time friend, Rahim Ahmad, was in the passenger seat. The police searched the car and found 10 to 15 pieces of rock cocaine in a blue nylon bag, marihuana, and Khan's wallet which contained his driver's license and motor vehicle registration for the Jeep Cherokee.
[7] Following a voir dire on the lawfulness of the arrest and search, the trial judge ruled that the evidence found in the car was admissible. No appeal is taken from that ruling.
[8] Crown counsel, in his opening statement at trial, indicated that the Crown intended to call an officer to testify as to items indicative of a "cook house" found following the execution of a search warrant at the home of Khan's girlfriend, Angelina Carter: baking soda, plastic baggies, a scale, bags with cocaine residue and bags with marihuana residue. Defence counsel objected to the proposed evidence on the basis that the case against Khan was presented as trafficking by offer, rather than manufacturing. Defence counsel also objected on the basis that there was insufficient connection between Khan and the residence in which the proposed evidence was located.
[9] The trial judge later ruled on the admissibility of the proposed evidence as follows:
The Court: The evidence that is proposed to be tendered relates to the preparation of drugs, that the evidence that might be tendered of the accused, in fact, being resident or otherwise occupying the premises is very little, save for some documents found with his name. I am advised there are no fingerprints, for instance, on the items that might be in the kitchen, no clothing, no shoes or other indicia of occupation of the premises.
Mr. Markovitz says then the admission of the evidence in terms of prejudicial effect far outweighs the probative value and, therefore, he moves to exclude that evidence. I think the objection is fairly made. I am somewhat uncomfortable in not hearing the evidence and then deciding the issue but certainly the prima facie point is well made so that order then can go that I will exclude that evidence obtained through the search warrant.
[10] Khan testified. He said that he had been receiving calls on his cellular telephone from a person or persons who wanted to buy drugs from him. The caller would say "Are you working?" which he understood to mean that he was being asked if he was a drug dealer. He testified that he was frustrated by these calls and when he received the call from the man who later proved to be Constable Cardinal, he decided to "confront" the caller, "catch him off guard", and put an end to the crank calls.
[11] Khan picked up his friend Ahmad to go to the gym. On the way to the gym, he drove to the agreed destination so that he could confront the caller. He told Ahmad about the crank calls and asked Ahmad to keep a look out and help him if necessary. He then walked to the bowling alley a block away.
[12] Ahmad testified that he brought the bag that contained the cocaine. He said he was delivering the bag to a person at the gym for which he was to be paid $100.
[13] Carter testified that she and Khan had been together for about eight years. She said Khan would occasionally sleep over. She confirmed Khan's evidence that he had been receiving crank calls, that they were related to "some sort of dealing", and that he did not understand why they were calling. Carter testified that her deceased father was involved with cocaine and his belongings were kept at the small condominium she shared with her sister.
[14] The trial judge rejected Ahmad's evidence as insensible. He rejected Khan's evidence that he did not intend to traffic as "unreal" in the face of the conversation with Constable Cardinal. He concluded:
[20] I am not convinced on my view of the evidence that this is a situation covered by the instructions one should give in a credibility case. Had it been that, the first issue would be: Do I believe the evidence of the accused? I do not. Even if I do not believe the testimony of the accused but I am left in a reasonable doubt, then I should acquit. I do not have any reasonable doubt on the central issue here. And thirdly, if not left in doubt by the evidence of the accused, then the question is on the basis of the evidence I do accept, am I convinced beyond a reasonable doubt of the evidence of the guilt of the accused? In this case I am. The accused on the day in question offered to sell $40 of cocaine and did so knowingly in breach of s. 5(1) of the Controlled Drugs and Substances Act. Furthermore, I find the accused was in possession of the cocaine on the day and place in question and did hold those drugs for the purpose of trafficking, contrary to the provisions of s. 5(1) of the Controlled Drugs and Substances Act.
[15] Khan alleges three errors in judgment:
I. The Crown's cross-examination of defence witnesses exceeded permissible limits, and the learned trial judge erred in failing to stop it;
II. The learned trial judge erred in his approach to the evidence as a whole, in failing to analyze it in accordance with the rule in Hodge's case, and in relying on inadmissible evidence; and
III. The learned trial judge failed properly to apply W(D) to the evidence.
[16] I am not persuaded that the trial judge erred as contended by the appellant.
[17] Khan complains that the Crown's cross-examination exceeded permissible limits in two respects. First, he says that Crown counsel cross-examined Khan and Carter on the evidence located in Carter's condominium which the trial judge excluded on the basis that the prejudicial effect of the evidence outweighed its probative value. There is no merit in this argument.
[18] Defence counsel, in the direct examination of Khan, asked him about Carter's residence, whether he lived there, and the amount of time he spent at Carter's home. Khan testified that he had never seen cocaine at his girlfriend's residence. In cross-examination, Khan agreed that he spent a lot of time at his girlfriend's place. He denied having seen cocaine or bags with cocaine or marihuana residue at Carters' residence. He said he did not know why there would be nine boxes of baking soda at Carter's residence.
[19] The Crown's cross-examination on the contents of Carter's home did not, in my opinion, run afoul of the general rule the Crown is not entitled to cross-examine witnesses on evidence that has been ruled inadmissible. First, defence counsel did not object to the cross-examination of Khan. Second, the defence opened the door to this area of examination in the direct examination of both Khan and Carter. The evidence had been excluded by the trial judge as being prejudicial to the accused. That prejudice evaporated when the accused, through his own direct evidence, established that he was connected to the residence in which the drug paraphernalia was located.
[20] The cross-examination of Carter was similarly inoffensive. The defence did object to the cross-examination of Carter on this point. The trial judge properly allowed Carter to be cross-examined on the matters raised in her evidence as well as Khan's – and more particularly on the suggestion that she was a "neat freak" who nevertheless had empty baggies of cocaine and marihuana – allegedly belongings of her deceased father – in various locations in her residence.
[21] The cross-examination of both witnesses was obviously directed at their credibility and was directed at establishing the absurdity of what they were saying in their testimony. In my opinion, Crown counsel's cross-examination was within the established limits: see R. v. A.J.R (1994), 94 C.C.C. (3d) 168, 20 O.R. (3d) 405 (Ont. C.A.), and R. v. Khan (1998), 126 C.C.C. (3d) 523, 109 B.C.A.C. 299. It was not rude, belittling, abusive or editorial. It cannot be said that the accused was deprived of a fair trial as a consequence of Crown's cross-examination.
[22] The second alleged transgression concerns the Crown's cross-examination of Khan on his criminal record. Khan initially denied having an adult criminal record. A short adjournment was called during which Crown counsel evidently produced a copy of Khan's record. Khan's counsel had no objection to the entirety of the record being put to him and no Corbett application was made. The transcript discloses that Crown counsel stated that he wanted to review with Khan convictions showing a propensity for dishonesty. Those included a conviction for fraud under $5,000 and theft of an automobile. Crown counsel also referred to a conviction for an unspecified offence that was registered about two weeks before the offence date in the case at bar. The latter offence was relevant to Carter's testimony that Khan shared everything with her but she was nevertheless unaware of that recent conviction.
[23] In my opinion, the cross-examination of Khan on his criminal record in these circumstances did not transgress permissible limits. It was obviously directed at Khan's credibility as well as Carter's.
[24] It is conceded that Crown counsel improperly cross-examined Khan concerning his admitted purchases and use of marihuana:
Q Now, you know that the possession of marihuana is illegal, don't you?
A Yes, I do.
Q And so you would normally break that law; isn't that right?
A Sure.
[25] This evidence of propensity was fleeting and was not referred to by the trial judge and cannot be said to have affected the fairness of the trial.
[26] Khan next argues that the trial judge erred in failing to properly analyze the evidence in accordance with Hodge's Case (1838), 2 Lewin 227, and R. v. Cooper, [1978] 1 S.C.R. 860. Khan argues that the defence evidence was capable of providing a rational alternative explanation for the circumstances disclosed by the Crown's case, one which Khan says was inconsistent with guilt and consistent with innocence.
[27] I find no merit in this argument.
[28] In R. v. Cooper, the Supreme Court of Canada rejected the idea that exclusive reliance on circumstantial evidence requires any special warning to the jury and firmly removed any relevance of the distinction between direct and circumstantial evidence.
[29] The case at bar was, as conceded by the appellant, a strong circumstantial case. The trial judge clearly did not believe the accused and his witnesses. In so doing, he rejected their explanation of the circumstances. In my opinion, that was a conclusion that was clearly open to him.
[30] Although the appellant's position is that this was a case in which the W.(D.) instruction was not required, he argues in the alternative that the trial judge failed to properly apply the test in R. v. W(.D.), [1991], 1 S.C.R. 742. I have already referred to para. 20 of the trial judge's reasons. It is apparent that the trial judge recognized that the case might not be covered by the W.(D.) instruction. He then analyzed the case on the basis that, had it been a credibility case, he concluded that the guilt of the accused had been proved beyond a reasonable doubt. In my opinion, reading the trial judge's reasons as a whole, it cannot be said that the trial judge did not have regard for the principles underlying the W.(D.) instruction or the ultimate issue in the case, namely reasonable doubt.
[31] I would dismiss the appeal.
[32] LEVINE, J.A.: I agree.
[33] TYSOE, J.A.: I agree.
[34] LEVINE, J.A.: The appeal is dismissed.
“The Honourable Madam Justice Kirkpatrick”