



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Crossley,







2006 
          BCCA 5



Date: 20060104





Docket: CA033377

Between:

Regina

Respondent



And

Curtis 
    James Crossley

Appellant












Before:


The 
          Honourable Mr. Justice Smith




(In 
          Chambers)








M. 
          Jette


Counsel for the Appellant




J. 
          Duncan


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




9 December 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




4 January 2006





Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]

On December 9, 2005, I granted the appellants application for judicial 
    interim release pending appeal with reasons to follow.  These are my reasons.

[2]

The appellant sought judicial interim release pursuant to s. 679 of 
    the
Criminal Code
pending his appeal from his conviction by 
    a jury on June 24, 2004 on one count of manslaughter as a lesser included 
    offence of a count alleging second degree murder, and on two counts of aggravated 
    assault.  On September 6, 2005, the trial judge, Mr. Justice Davies, sentenced 
    the appellant to seven years imprisonment for the manslaughter and two years 
    concurrent for each of the convictions for aggravated assault.  He gave credit 
    of eight months for pre-sentencing custody and, as a result, the actual sentence 
    was six years and four months.

[3]

To succeed under s. 679(3) of the
Code
, an applicant 
    must establish on a balance of probabilities that:

a)

the appeal or application for leave to appeal is not frivolous;

b)

he will surrender himself into custody in accordance with the terms 
    of the order, and

c)

his detention is not necessary in the public interest.

[4]

The offences occurred in the home of the deceased, Walter Irving, on 
    the night of March 15, 2004, when a gang of at least six persons broke into 
    the home and beat Mr. Irving and two others, Ifraz Khan and David Baik.  The 
    jury acquitted the appellant of the second degree murder of Mr. Irving and 
    convicted him of the included offence of manslaughter.  They also convicted 
    him of aggravated assault of Mr. Khan and Mr. Baik.

[5]

Mr. Irvings home was known as a crack shack in which drugs were 
    used and sometimes dealt.  Mr. Irving was a known crack cocaine and heroin 
    addict and dealer.  The appellant was previously acquainted with him by reason 
    of his own addiction to crack cocaine.

[6]

The Crowns theory was that motive for the beatings was retribution 
    for a beating suffered earlier that day by the appellant, when he and his 
    cousin, Arthur Bouchard, were involved in a fight with two men, one of whom 
    was Mr. Khan.  The trial judge found that either the appellant or Mr. Bouchard, 
    more likely Mr. Bouchard, threw a rock or a brick through the basement window 
    of the Irving home.  Mr. Khan and another man, identified only as Cam, who 
    were in the home at the time, chased and caught them.  During the fight, the 
    appellants ear was badly cut by a knife wielded by Cam.  He attended a 
    hospital, where his head was bandaged, and then went home.  About nine hours 
    later, the gang of at least six persons, including the appellant, broke into 
    the Irving home and inflicted the beatings that gave rise to these proceedings.  
    The man known as Cam was not present in the Irving home at that time.

[7]

The trial judge noted that the evidence of the events inside the home 
    was controversial and not particularly reliable.  The key Crown eyewitnesses 
    were Mr. Khan and Cynthia Errington, who were both under the influence of 
    crack cocaine at the material time.  As might be expected, there were conflicts 
    in their testimony.  The trial judge observed that there were many bases upon 
    which the jury could have reached their verdicts and that he must therefore 
    make the necessary findings of fact concerning the appellants participation.

[8]

Accordingly, the trial judge concluded that the invaders forced their 
    way into the Irving residence and that they were carrying several baseball 
    bats and at least one machete.  It was established that Mr. Irving died from 
    one lethal blow to the head.  He concluded that Mr. Irving was knocked down 
    by the attackers and repeatedly beaten or kicked.  He was unable to conclude 
    whether the lethal blow was inflicted by a baseball bat, as Ms. Errington 
    had testified, but he described the beating as egregious, vicious, violent, 
    and protracted.  He found that Mr. Baik was attacked by at least one individual 
    and that Mr. Khan was repeatedly attacked by one individual.  He could not 
    conclude that the appellant was an active participant in any of these beatings.  
    Accordingly, he concluded that the jury must have found the appellant guilty 
    as an aider and abettor under s. 21(1) of the
Code
, rather than 
    as an actual perpetrator of the beatings.

[9]

The ground of appeal asserted is that the learned trial judge erred 
    in his instructions to the jury concerning their use of the prior out of court 
    statements of witnesses Arthur Bouchard and Andy Sulin.  Both of these witnesses 
    were called by the Crown.

[10]

As I have noted, Arthur Bouchard was with the appellant at the fight 
    that occurred earlier in the day.  He was also in the appellants company 
    during the period of time immediately prior to the events in the Irving home.  
    He was interviewed by the police and made several statements that, if accepted, 
    afforded the jury a basis for inferences that would enmesh the appellant in 
    the crimes of which they convicted him.  At the trial, he gave evidence that 
    contradicted all of these incriminating statements.  The Crown was permitted 
    to cross-examine him under s. 9(2) of the
Canada Evidence Act
.  
    Following that cross-examination, the Crown applied to cross-examine him at 
    large under s. 9(1).  The trial judge granted the application, concluding 
    that the evidence he had given was substantially inconsistent with his prior 
    statements and potentially positively harmful or damaging evidence to the 
    Crowns case and deliberately so.  As the Crown was still unable to obtain 
    the evidence it wished from Mr. Bouchard, it applied to introduce his statements 
    to the police as substantive evidence pursuant to the principles set out in
R. v. K.G.B.
, [1993] 1 S.C.R. 740.  The trial judge dismissed 
    this application.

[11]

Andy Sulin was also interviewed by the police.  He was with the appellant 
    in the period of time preceding the fatal events and he told the police that 
    the appellant had made statements to him that, if his evidence was accepted, 
    could have persuaded the jury to reach the verdicts it delivered.  Like Arthur 
    Bouchard, Andy Sulin gave evidence in the witness box that was inconsistent 
    with the statements he had made to the police.  With the permission of the 
    trial judge, the Crown cross-examined him pursuant to s. 9(2) of the
Canada 
    Evidence Act
.

[12]

Both Arthur Bouchard and Andy Sulin testified before the jury that 
    the statements they had given to the police were lies.

[13]

Before discussing the ground of appeal alleged, I will mention one 
    other notable incident in the trial.  Apparently, after he left the witness 
    stand, Arthur Bouchard made a disrespectful gesture toward the jury.  After 
    inquiries by the Sheriff at the behest of the trial judge, it was disclosed 
    that four jurors had seen the gesture and that one was specifically concerned 
    about it.  The trial judge interviewed each of these jurors separately in 
    the courtroom and was satisfied that they would abide by their oath despite 
    the incident.  Subsequently, in open court, the trial judge inquired of the 
    jury as a whole and was advised that all of them were aware of the incident 
    and that it would not affect the ability of any of them to render an impartial 
    verdict.  Accordingly, he dismissed the appellants application for a mistrial.  
    The appellant raised this incident only to suggest that it gives colour to 
    the submission that the jury might have been influenced to give weight to 
    evidence of what was said by the witnesses Bouchard and Sulin to the police, 
    since the trial judge did not, in his view, properly direct them on this issue.

[14]

Counsel agree that neither Arthur Bouchard nor Andy Sulin adopted the 
    statements they made to the police incriminating the appellant in the crimes.  
    Accordingly, the appellant submits that the trial judge erred when he told 
    the jury that it was open to them to find that these witnesses had adopted 
    part or parts of their earlier statements and, if they so found, that they 
    could use such statements as evidence of the truth of what was said.  As well, 
    the appellant notes that the trial judge also reminded the jury that these 
    witnesses testified under oath that they told nothing but lies to the police.  
    Thus, the appellant says the jury was given conflicting instructions.  In 
    the appellants submission, in the particular circumstances of this case, 
    the trial judge should have told the jury that these witnesses did not adopt 
    any of their prior statements to the police.

[15]

Although the Crown indicated in its written statement that it would 
    oppose the applicants release under s. 679(3)(a), Crown counsel did not take 
    the position at the hearing that the appeal is frivolous.  In my view, the 
    appeal is not frivolous and the appellant has satisfied s. 679(3)(a).

[16]

The Crown did not suggest that the appellant will not surrender himself 
    into custody in accordance with the terms of any order for his release, as 
    is required by s. 679(3)(b).  That was a reasonable concession.  The appellant 
    is twenty years old.  He has no previous criminal record.  He recently married 
    his childhood girlfriend.  She has held part-time employment while she has 
    been attending college and working toward a college diploma.  She also plans 
    to obtain a university degree.  She says that she stands by [the appellant] 
    regardless of the outcome of these proceedings.  The appellant is the eldest 
    of three children.  His family has provided him a stable and supportive upbringing.  
    His parents are both employed, the father full-time and the mother on and 
    off as a home support worker.  They stood surety for him on his release pending 
    trial on a recognizance in the amount of $50,000.  He was on bail pending 
    his trial for fourteen months and complied with all the terms of his release. 
     His parents remain supportive of him and agreed to be sureties on the same 
    terms in respect of his release pending appeal.  He produced at his sentencing 
    many letters from family members, friends, and other associates attesting 
    to his good character.  He left school after Grade 12 and was employed part-time 
    in his uncles wholesale paint business from July 2004, when he was released 
    on bail, until his sentencing.  His uncle expressed his desire to employ him 
    on his release.  Accordingly, there is no real concern that he will fail to 
    surrender himself in accordance with the terms of his release.

[17]

On the negative side, the appellant has struggled with drug abuse since 
    he began using crystal meth at age fifteen.  He eventually became addicted 
    to crack cocaine and disclosed to the probation officer who prepared his pre-sentence 
    report that he had resorted to crime to support his habit, including stealing 
    and selling some of his parents belongings.  He claimed to have remained 
    free of illicit drug use since he was arrested in March 2004 on these charges.  
    It should be noted that one of the conditions of his release was that he abstain 
    from consumption of non-prescription drugs and that he submit to a urinalysis 
    on demand by a peace officer or member of staff of the Corrections Branch.  
    There is no suggestion that he breached that condition.

[18]

The appellant consented, through his counsel, to a condition of his 
    release that he abstain from consumption of illicit drugs and submit to urinalysis 
    on demand.  In addition to that condition, I imposed, among others, conditions 
    that he observe a curfew by remaining in his residence every day between 9:00 
    pm and 8:00 am, unless he has the written consent of his Bail Supervisor or 
    for emergent medical problems; that he have no contact with the complainants 
    or any Crown witnesses; and that he remain in the Province of British Columbia.  
    Accordingly, I released him upon his entering into a recognizance with two 
    sureties (his parents) in the sum of $50,000.

[19]

Turning to s. 679(3)(c) of the
Code
, the definition of 
    public interest is elusive.  The particular facts of the case under consideration 
    are important, including the strength of the appeal:  see, for example,
R. 
    v. Nguyen
(1997), 119 C.C.C. (3d) 269 (Chambers), McEachern C.J.B.C., 
    and
R. v. Mapara
(2001), 158 C.C.C. (3d) 312, 2001 BCCA 508.

[20]

In the end, the question is whether a reasonable member of the public, 
    with accurate knowledge of the law, the nature of the risk Parliament anticipated, 
    the actual circumstances of the accused, and the facts of the case would 
    lose confidence in the administration of justice if the appellant were released 
    pending his appeal:
R. v. Nguyen
,
supra
, paras. 25-26.

[21]

Although Crown counsel characterized the alleged error as subtle 
    and narrow, I did not understand her to seriously challenge the strength 
    of the appeal.  Rather, I took her to focus primarily on the necessity for 
    the imposition of strict conditions on the appellants release.

[22]

These were extremely violent crimes.  Although the Crown urged the 
    trial judge to conclude that the appellant was the organizer of the home 
    invasion and that he was motivated by a desire for revenge, he did not accede 
    to that submission.  The jury acquitted the appellant of the murder charge 
    and convicted him as an aider and abettor of the other offences, rather than 
    as a perpetrator.  Thus, his participation in the crimes was not as egregious 
    as that of the persons who inflicted the beatings.  Further, the appellant 
    is a young man and he has no previous criminal record.  He has a supportive 
    family, including his wife, and solid roots and support in the community.  
    As well, he complied with all the conditions of his release pending trial.

[23]

Weighing the circumstances I have described and the grounds of appeal 
    alleged, I am satisfied that the appellants release on the strict conditions 
    I have imposed will not damage public confidence in the administration of 
    justice.

[24]

Accordingly, I granted 
    the appellants application for judicial interim release pending appeal.

The Honourable 
    Mr. Justice Smith


