



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Jalifi,









2016 BCCA 18




Date: 20160119

Docket: CA42957

Between:

Regina

Respondent

And

Rachid Ali Jalifi

Appellant




Before:



The Honourable Madam Justice Bennett

(In Chambers)




On appeal from: An
order of the Supreme Court of British Columbia, dated June 24, 2015 (
R.
v. Jalifi
, 2015 BCSC 1085, Kelowna Docket 75771).




Counsel for the Appellant:



N. Cobb





Counsel for the Respondent:



M. Scott





Place and Date of Hearing:



Vancouver, British
  Columbia

November 24, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2016










Summary:

The
applicant applies for leave to appeal summary convictions for two counts of
assault. The issue at trial was identification. HELD: Leave to appeal
dismissed. There is no error of law that meets the test for leave to appeal.

Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

Mr. Jalifi brings an application for leave to appeal a summary
conviction appeal that dismissed the appeal from his conviction on two counts
of assault entered on January 6, 2014. The reasons for judgment of the summary
conviction appeal judge are indexed at 2015 BCSC 1085.

[2]

The guiding provision is s. 839 of the
Criminal Code
, R.S.C.
1985, c. C-46:

839.
(1) Subject to subsection (1.1), an appeal to the court of
appeal as defined in section 673 may, with leave of that court or a judge
thereof, be taken on any ground that involves a question of law alone

[3]

The issue at trial was the identification of the assailant. The two
victims were assaulted outside a nightclub in Kelowna, B.C. The assailant fled
the scene. Mr. Jalifi was later arrested in a black Mercedes Benz, his
photo was placed in a photo-pack and identified by some of the witnesses.

[4]

The applicant raised numerous ground of appeal:

i)        the summary
conviction appeal judge erred by characterizing the trial judges determination
on the fairness of the photo-pack as a question of fact;

ii)        there
were palpable and overriding errors made by the summary conviction appeal
judge; and he misapprehended the evidence;

iii)       the
summary conviction appeal judge failed to deal with the argument that the trial
judge erroneously relied on hearsay evidence; and then fell into the same
error; and

iv)       that
the summary conviction appeal judge failed to apply the correct legal principles
in relation to eye witness identification.

[5]

The test to apply to whether leave to be appeal should be granted is
found in
R. v. Winfiled
, 2009 YKCA 9 at para. 13:

[13]      To obtain leave to
appeal from the decision of a summary conviction appeal court, the applicant
must establish that (a) the ground of appeal involves a question of law alone,
(b) the issue is one of importance, and (c) there is sufficient merit in the
proposed appeal that it has a reasonable possibility of success. The overriding
consideration in the exercise of the discretion to grant or refuse leave is the
interests of justice:
R. v. Cai
, 2008 BCCA 332, 258 B.C.A.C. 235
at para. 26 (Chambers);
R. v. Gill
,
2008 BCCA 259
at para. 3
(Chambers).

i)        Photo-pack

[6]

Mr. Jalifi takes issue with the manner in which the photo-pack was
prepared, arguing that the process did not follow the acceptable procedure for
photo-pack identification. The evidence, in short, is that the photos were
chosen by a civilian jail guard, who was aware that he was looking for photos
similar in appearance to the suspect. The photo-pack was reviewed by the investigating
officer. He determined that the suspect should not have his large earrings or
chain on in his photo. This is argued to be an error, as no witness described the
jewelry. In my view, there was no error in removing the very distinctive
jewelry. Not to do so would likely have been a fatal error in the presentation
of the photo-pack.

[7]

The officer organizing the photo-pack did not know who the suspect was.
She also reviewed the photo-pack for similarities between photos. The officers
who presented the photo-pack to the witnesses also did not know which photo was
that of the suspect.

[8]

The trial judge found, at para. 17:

In each case the photographs were
presented one-by-one to the witness. The constable presenting the photographs
did not know the particulars of the case nor the identity of the accused. Each
interview was conducted objectively and fairly. In my view, the photos which
formed the photo pack, fairly matched Mr. Jalafis descriptors. In other
words, the line-up was fair.

[9]

And at para. 30:

I have carefully reviewed the
evidence. I had an opportunity to review each of the videotaped photo pack
interviews. They were procedurally correct and fair. In each case I was able to
observe the witnesses identification as well as the words and actions that accompanied
the identification. This is not a case where there is only one eyewitness. This
is not a case where the witnesses only had a fleeting glimpse of the accused.
Three of the four civilian witnesses have identified Mr. Jalafi as the
male who struck Mr. Scott and Mr. Drechsler. Although I place little
weight on the in-court identification, I am satisfied that the photo line-up
was conducted fairly and in accordance with the law. On the totality of the
evidence I am satisfied that the Crown has proven beyond a reasonable doubt
that Mr. Jalafi was the male who assaulted both Mr. Scott and Mr. Drechsler.

[10]

The summary conviction appeal court judge found that there was no basis
to disturb the trial judges findings. I agree with this conclusion. Whether
the finding that a photo-pack is fair or properly conducted is a question of
fact does not matter, as in this case, it is clearly not a question of law
alone. The appellant disputes the findings of fact, not the conclusion of law
reached on the basis of those facts. See
R. v. Morin
, [1992] 3 S.C.R.
286 at 294296.

[11]

In my view, there is no basis to grant leave to appeal on this ground.
The issue does not raise a question of law alone, it is not a question of
importance and has little merit.

ii)        Palpable and
overriding errors and a misapprehension of the evidence

[12]

Although raised as a separate ground, Mr. Jalifi raises errors made
by the summary conviction appeal judge in the context of his analysis of the
photo-pack process. If the judge misstated the evidence in the context of the
photo-pack, it was not to the degree of palpable or overriding, nor did it
materially affect his decision. For example, Mr. Jalifi repeats the fact
that the summary appeal judge referred to the photo-pack as a photo line-up. He
discusses what he refers to as misstatements with respect to the physical
descriptors of the suspect, when what the officers relied on was the photo of
the suspect, and whether the other photos were sufficiently similar. None of
the alleged misstatements, if they amounted to misstatements in relation to
the photo-pack, were material. Indeed, most of the issues raised by Mr. Jalifi
are trifling. The conclusion that the photo-pack was fair was based on
general compliance with a process that has been recommended in the
Sophonow
Inquiry
.

[13]

I would not grant leave to appeal on this ground.

[14]

In summarizing the evidence, the trial judge stated, at para. 12, He
describes seeing the male cross the street with his friends and get into a car
which he believed to be a black Mercedes. The he was one of the victims,
Brian Dreschler. Mr. Dreschler did not give this evidence. The evidence
was hearsay evidence provided by the police officer from a witness at the scene
who would not identify himself. Mr. Jalifi did not raise this misstatement,
however, I sought further submissions from counsel on this point.

[15]

The summary conviction appeal court judge correctly stated the evidence
of Mr. Drechsler, that he did not see where the assailant went after the
assault. However, he did not consider this error in assessing whether the trial
judge misapprehended the evidence. The issue of misapprehension of evidence was
before the summary conviction appeal judge, however, it appears that this particular
passage was not drawn to his attention.

[16]

A close examination of this misstatement reveals that it is not material;
the trial judge did not rely on this evidence when he convicted Mr. Jalifi.
See reasons for judgment at para. 10 noted above. Thus, although this is
an error in law, it is not one that merits granting leave to appeal as it is
unlikely to succeed. Nor does it raise a matter of importance.

iii)       Hearsay evidence

[17]

This issue refers to the evidence noted above in relation to the witness
who refused to be identified. His evidence was used to base the officers
reasonable grounds for stopping the Mercedes Benz and arresting Mr. Jalifi.
This is a non-hearsay purpose, and the evidence was admissible for this
purpose.

[18]

Mr. Jalifi also argues that the summary conviction appeal judge
relied on this evidence to support the police photo-pack as they had
descriptors from this witness. The photo-pack was prepared primarily from
what the suspect looked like, thus any reference to so-called descriptors from a
non-witness is irrelevant.

[19]

There is no basis to grant leave on this ground.

iv)       Eyewitness
identification

[20]

In his argument, Mr. Jalifi reviews each witness and their
respective frailties. He does not identify how the trial judge or the summary
conviction appeal judge erred in law in the analysis of the evidence. The trial
judge reviewed the evidence, and the difficulties with each witness. He
identified the problems with the frailties of eyewitness identification,
specifically referring to the applicable case law (Reasons paras. 24-30).

[21]

The summary conviction appeal judge reviewed the various grounds of
appeal relating to the photo-pack and was clearly alive to the identification
issues at trial. I see no error in the reasons of the summary conviction appeal
judge that would warrant granting leave to appeal on this basis.

[22]

The bottom line is that this was an eyewitness identification case. The
trial judge carefully reviewed the identification evidence, the photo-pack
evidence and turned his mind specifically to the issues relating to eyewitness
identification.

[23]

The summary conviction appeal judge found no error in his approach. I
find no error which meets the test to grant leave to appeal.

[24]

The application for leave to appeal is dismissed.

The
Honourable Madam Justice Bennett


