



COURT OF
APPEAL FOR BRITISH COLUMBIA




Citation:



R. v.
  Salim,









2007 BCCA 44




Date: 20070119

Docket: CA034639

Between:

Regina

Respondent

And

Mohammed
Rassul Salim

Appellant



THE BAN ON PUBLICATION s. 517 (1)
C.C.C.
EXPIRED
SEPTEMBER 9, 2009 WITH THE GUILTY PLEA




Before:



The Honourable Madam
  Justice Rowles





The Honourable Madam
  Justice Ryan





The Honourable Madam
  Justice Newbury




Oral Reasons for Judgment




I. Carter



Counsel for the Appellant





J. Lawton



Counsel for the (Crown) Respondent





Place and Date:



Vancouver, British Columbia





19 January 2007








[1]

RYAN, J.A.
: Mohammed Rassul Salim is charged with
second degree murder of Job Clark.  The offence is alleged to have occurred on
4 September 2006 in the parking lot of a commercial establishment in Burnaby at
about 1:15 in the morning.

[2]

On 24 October 2006
Associate Chief Justice Dohm detained Mr. Salim in custody pending his trial
pursuant to s. 522(2) of the
Criminal Code
.  Mr. Salims
preliminary hearing is now set for 6 July 2007.

[3]

Pursuant to the order
of the Chief Justice we have heard this review pursuant to s. 680 of the
Criminal

Code
.

[4]

The jurisprudence of
this Court (
R. v. Wu
(1998), 117 BCAC 305;
R. v. JWR
(1999), 129 BCAC 232) dictates that on such a review this Court is bound by the
findings of fact by the Supreme Court of Justice, but we are free to substitute
our own conclusions for those of the Supreme Court Justice if we are of the
view that the evidence meets the appropriate statutory criteria.

[5]

The deceased, Mr.
Clark, was 22 years of age at the time of his death.  The applicant, Mr. Salim,
was 41.  They did not know each other before the morning of the killing.  The
evidence as to how they met and for how long they were together is not entirely
clear.  As described by Mr. Clarks cousin, Ms. Wilson, Mr. Clark and Ms.
Wilson were drinking in a park in Burnaby when they met Mr. Salim and a
friend.  The four drank together.  At some point Mr. Salim and his friend
invited the others to go to a video arcade to play video games.  They walked to
Mr. Salims van, Ms. Wilson got into it.  Mr. Clark and Mr. Salim argued about
whether Mr. Clark would get into the van.  Mr. Clark either pushed Mr. Salim
down or Mr. Salim tripped.  Rather than drive, the parties then began to walk
to the video arcade.  In her statement to the police Ms. Wilson said that Mr.
Salims friend pushed Mr. Clark as they walked.  As I understand it, the
Crowns theory is that it was not the friend but Mr. Salim who did the pushing.

[6]

What next happened in
the park was witnessed by Mr. Brennan, a bus driver who had finished work and
was driving home with his two adolescent boys.  He told police that he saw a
younger man swing at older man in the park.  Mr. Brennan described the younger
man as large and about six inches taller than the older fellow.  Not long after
the younger man swung at the older, Mr. Brennan said the younger one ran to a
parking lot with two others following after him.  Mr. Brennan described the two
men as stalking or herding the younger man who was stumbling and appeared
very drunk.  Eventually the two men confronted the younger and one of them
stabbed him three times before he ran off.

[7]

In his statement to the
police Mr. Salim claimed that Mr. Clark was drunk and out of control and that
the stabbing was in self-defence.

[8]

The Associate Chief
Justice detained Mr. Salim solely on the basis of the tertiary ground.  The
bail hearing before him proceeded on the basis that Mr. Salim had established
that his detention is not necessary on either the primary or secondary ground. 
In detaining Mr. Salim Associate Chief Jusitice Dohm said this

[2] Two things can be said about that set of
circumstances.  The defence of self-defence may have some application but I, at
this stage, have some difficulty in accepting it.  More importantly, that sort
of conduct, that is the running away by the deceased and the stalking or
herding by the accused and his friend of the deceased, I think moves this case
clearly within the tertiary ground.  Those circumstances are such that it
would, once known, instil fear and unrest in members of the community and I
think would leave many with concerns about the administration of justice if
that sort of individual, namely the accused, was allowed out on bail pending
the disposition of the matter.  I think that feature alone, never mind whether
there is an issue of self-defence and whether it applies, that particular
feature makes it difficult for the accused to meet the tests that he is
obligated to do so under the tertiary ground, and that sort of activity, cowardly
though it was, makes it exceedingly difficult for this court to grant bail.  He
will remain detained.

[9]

Since the time of the
bail hearing, further witnesses have been interviewed.  This includes Mr.
Brennans two children and Mr. Salims friend.  While this Court has a limited
capacity to admit fresh evidence on this hearing (
R. v. Dempsey
(2001), 153 C.C.C. (3d) 311 (B.C.C.A.), I am of the view that it is open to us in
this case to examine the evidence as amplified by the further witness
statements.  In my view, it is fair to say that Mr. Brennans sons support his
version of the events, Mr. Salims friend  who describes Mr. Salim and Mr.
Clark shadow boxing before the stabbing  supports Mr. Salims version of the
events.

[10]

The test that this
Court must apply on this review is set out in the section itself.  Section 515
(10) (c) of the
Code
provides:

515 (10)
For the purposes of this section, the detention of an
accused in custody is justified only on one or more of the following grounds:

(
c
)
on any other just cause being shown and, without limiting the generality of the
foregoing, where the detention is necessary in order to maintain confidence in
the administration of justice, having regard to all the circumstances,
including the apparent strength of the prosecutions case, the gravity of the
nature of the offence, the circumstances surrounding its commission and the
potential for a lengthy term of imprisonment.

[11]

As put by Chief Justice
McLachlin in
R. v. Hall
(2002), 167 C.C.C. (3d) 449 (S.C.C.) at
para. 41:

. . . The judge must be satisfied that detention is
not only advisable but necessary.  The judge must, moreover, be satisfied that
detention is necessary not just to any goal, but to maintain confidence in the
administration of justice.  Most importantly, the judge makes this appraisal
objectively through the lens of the four factors Parliament has specified.  The
judge cannot conjure up his own reasons for denying bail; while the judge must
look at all the circumstances, he must focus particularly on the factors
Parliament has specified.  At the end of the day, the judge can only deny bail
if satisfied that in view of these factors and related circumstances, a
reasonable member of the community would be satisfied that denial is necessary
to maintain confidence in the administration of justice.

[12]

As I read the reasons
of Associate Chief Justice Dohm, the sole reason for detention was his concern
that the evidence as alleged by the Crown at the bail hearing revealed that the
victim has been herded and stalked by Mr. Salim before he was stabbed to
death and that this type of killing would instil fear into the members of the
community.  With great respect I am of the view that the last minutes of the
incident should not be isolated from the broader context.  While the evidence
of Mr. Brennan and his children, if it is viewed alone, is disturbing, this is
not a case where the Crown alleges that the accused randomly chose a person to
victimize on the morning in question.  Something happened between Mr. Salim and
Mr. Clark that turned a friendly meeting into a violent one.  The crime may be
tragic and senseless, but it is not random.

[13]

As Mr. Carter has set
out in his material:

Mr. Salim is a 41 year old father of five.  Until his
detention he lived with his wife and children.  For the last four years he
worked six days a week at a gas station to provide for his family.  Prior to
immigrating to Canada in 2001, he had lived and worked in Afghanistan.  He had
attained a degree in Economics from the Ministry of Higher and Vocational
Education at Kabul University.  In 1996, he fled the Taliban regime in
Afghanistan and took his family to Pakistan.  While in Pakistan he worked for a
non-governmental organization called Medical Refresher Courses for Afghans.  He
has no criminal record.

[14]

I agree with the
submission of Mr. Carter that if the public were fully informed of the
circumstances of Mr. Salim and the case for the Crown that his detention would
not be necessary to maintain confidence in the administration of justice.

[15]

For these reasons, I
would allow the application despite the very capable submissions of Ms. Lawton and
order the release of Mr. Salim on terms and conditions which may be discussed
later.

[16]

ROWLES, J.A.
: I agree

[17]

NEWBURY, J.A.
: I agree.

(discussion with counsel)

[18]

RYAN, J.A.
: After the discussion with counsel, I am
of the view that Mr. Salim should be released in the amount as proposed of $10,000
cash with one surety.  The terms and conditions will be as set out by Mr.
Carters written submissions with the exception that the conditions should also
include a prohibition with respect to alcohol and drugs.  Counsel can work out
the wording of the condition.

[19]

ROWLES, J.A.
: I agree.

[20]

NEWBURY, J.A.
: I agree.

The Honourable Madam Justice Ryan


