R. v. Jackson (F.S.) (2005), 218 B.C.A.C. 105 (CA);
359 W.A.C. 105
MLB headnote and full text
Temp. Cite: [2005] B.C.A.C. TBEd. NO.053
Regina (respondent) v. Faron Steven Jackson (appellant)
(CA030893; 2005 BCCA 539)
Indexed As: R. v. Jackson (F.S.)
British Columbia Court of Appeal
Hall, Levine and Kirkpatrick, JJ.A.
October 20, 2005.
Summary:
The accused was convicted of possession of a weapon, uttering a threat to cause death or bodily harm and two counts of unlawful confinement. The charges arose from an incident involving the woman living with the accused and her daughter. The accused appealed against conviction, submitting that (1) the trial judge erred in failing to draw an adverse inference respecting the Crown’s failure to call the woman as a witness; (2) the verdicts were unreasonable; and (3) the trial judge misapprehended the evidence.
The British Columbia Court of Appeal dismissed the appeal.
Criminal Law – Topic 5320
Evidence and witnesses – Inferences – From failure to call witness – The accused was convicted of a weapons offence, uttering a threat and two counts of unlawful confinement in relation to an incident involving the woman living with the accused and her daughter – The woman did not testify – The accused appealed, submitting that the trial judge erred in failing to draw an adverse inference because the Crown failed to call the woman as a witness – The British Columbia Court of Appeal dismissed the appeal – A trial judge had a discretion to draw an adverse inference – The Crown had a discretion whether or not to call a witness with relevant information, including a complainant, and no explanation was required absent circumstances compelling an inquiry – No such inquiry was required here, because the evidence “essential to the narrative” was otherwise before the court – The Crown did not need the woman’s testimony – Further, the accused had the right to call the woman as a defence witness if he believed it would assist his case – See paragraphs 10 to 20.
Criminal Law – Topic 5409
Evidence and witnesses – Witnesses – Duty of Crown to call witnesses – [See
Criminal Law – Topic 5320
].
Cases Noticed:
R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 12].
R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1, refd to. [para. 12].
R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 14].
R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 15].
R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 21].
Counsel:
P.L. Snelling, for the appellant;
W.J.S. Bell, for the respondent.
This appeal was heard on October 20, 2005, at Vancouver, B.C., before Hall, Levine and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal.
The judgment of the Court of Appeal was delivered orally on October 20, 2005, and the following opinions were filed:
Levine, J.A. – see paragraphs 1 to 34;
Hall, J.A. – see paragraphs 35, 37;
Kirkpatrick, J.A. – see paragraph 36.
