R. v. Xiao, 2016 BCSC 854

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Xiao, 2016 BCSC 854 Date: 20160513 Docket: 98669-1 Registry: Kamloops Regina v. Xin Yue Xiao Before: The Honourable Mr. Justice Dley On appeal from: An order of the Provincial Court of British Columbia, dated December 17, 2015 ( R. v. Li , 2015 BCPC 365 ) Reasons for Judgment Counsel for the Crown: L. Drake Counsel for the Accused: K.A. Walker I.F. Kaatz Place and Date of Hearing: Kamloops, B.C. April 26, 2016 Place and Date of Judgment: Kamloops, B.C. May 13, 2016 Introduction [ 1 ] Mr. Xiao appeals his convictions in provincial court.

The main issue in his trial was identity. [ 2 ] The trial judge relied partly on the time of death in reasoning that Mr. Xiao was the offender. The time of death was not the subject of expert evidence. [ 3 ] The question on this appeal is whether expert evidence was required and whether Mr. Xiao received a fair trial. [ 4 ] For the reasons set out below, I have concluded that expert evidence was required and, in the absence of such evidence, Mr. Xiao did not receive a fair trial. Background Facts [ 5 ] Mr.

Xiao was charged with three offences under the Wildlife Act , R.S.B.C. 1996, c. 488: i. hunting or killing a moose during closed season - s. 26(1)(c); ii. having a dead moose in his possession without authorization - s. 33(2); and iii. failing to retrieve a dead moose - s. 35(2). [ 6 ] Mr. Xiao was seen in Merritt on October 4, 2013. [ 7 ] On October 5, Charlie Carusi and his son Kyle were hunting in an area near Merritt. Both were experienced hunters. They passed a Ford Raptor pick-up truck with one occupant. Continuing further, they saw a dead moose beside the road. The moose was cold to touch.

Charlie Carusi thought the moose might have been killed one or more days earlier. [ 8 ] The Carusis drove on and returned 10-45 minutes later to the same location where the moose had been. They saw the Ford Raptor backed up to the moose. Two men were standing there. Kyle Carusi asked one of the men if he had shot the moose; the reply was “yup” or “yeah”. [ 9 ] Kyle Carusi noted the truck’s license plate as they drove away and reported his observations to the Conservation Service.

The Carusis returned to the site and saw that the moose carcass was still on the side of the road. [ 10 ] Later that day, the Ford Raptor was located in Vancouver. Mr. Xiao was not the registered owner. However, a search of the

truck revealed two rifles and identification in the name of Mr. Xiao. [ 11 ] Conservation Officer Dahl went to where the moose had been left. He examined the carcass and formed the opinion that it had been killed that day. [ 12 ] At trial, Kyle Carusi was cross-examined regarding his observations of the carcass: Q You surmised in your statement that it might have been killed the day before. A I wasn’t sure. Q The -- when you -- your father pulled out the knife, did you see the blood on the knife? A Yep. Q What did it look like? A It looked like it was starting to clot. Q Okay.

Is that another indication that it’s not a fresh kill? A Yes. MR. GOULET: I object, Your Honour. I don’t know if this witness can provide that sort of evidence. THE COURT: All right. Page 20; lines 28-41 [ 13 ] After the trial judge’s comment “all right”, defence counsel moved on to a different line of questioning. [ 14 ] During his examination-in-chief, Charlie Carusi said: A Well, when we come across the moose, we stopped, we got out, and we looked at it. We had seen where it was dragged out from, from the -- from out of the -- the tree line.

And we -- we talked about it, and we said, “Well, what do you think -- how long do you think this moose has been here? Like is it -- is it a fresh kill? Is it” -- and we -- he said, “What do you want to do with it?” And I said, “I -- I don’t know how long it’s been there.” I said, “It could -- could be there -- it could have been shot there yesterday. It could have been shot a week.” I said, “I don’t want to touch it.” So, we looked at it, and my son stuck a knife in the -- in the bullet hole to see if it had blood car -- cart -- blood sticking to it or -- and I told him just to leave it alone.

We -- we touched the moose. It was cold. It wasn’t warm to the touch, so I said, “I don’t want to take any of it, because it -- it could -- it could be spoiled,” so I just said, “Just leave it alone.” Page 31; lines 16-37 [ 15 ] In cross-examination, Charlie Carusi agreed that the moose “might have been killed the day before or even before that”: p. 39, lines 14-16. [ 16 ] Defence counsel took objection to Officer Dahl being asked about the time of death. No notice had been given by the Crown that opinion evidence was going to be tendered.

In rejecting the defence objection, the trial judge said: THE COURT: All right. I am going to allow the Crown to ask the witness about his experience as a conservation officer and his experience in examining dead wildlife. I think that’s appropriate in the circumstances, but -- it’s not an expert opinion, but I think it’s an exper -- an opinion based on the witness’s experience, and, obviously, it goes to weight. Page 50; lines 17-24 [ 17 ] In the reasons for judgment, the trial judge preferred the evidence of Officer Dahl as to the time of death because he had done a more thorough examination of the carcass.

The trial judge said: [58] It is clear on the evidence that the Carusis, despite being experienced hunters, only conducted a cursory examination of the dead moose. Officer Dahl conducted a more thorough examination, and when coupled with his experience, was better positioned to make a determination of when the moose was shot and killed. I accept his evidence that the moose was shot and killed on October 5, 2013. R. v. Li , 2015 BCPC 365 at para. 58 . [ 18 ] The trial judge reviewed the evidence in detail and concluded Mr.

Xiao was the driver of the Ford Raptor that had passed by the Carusis and that he had shot the moose. The trial judge said: [78] Based on the evidence of Officer Dahl as to when the moose was killed, it is reasonable to conclude that Mr. Xiao was driving the Ford Raptor down the Dardanelles Lake Forest Service Road, when passed by the Carusis, and that he had shot the moose earlier in the morning. After killing the moose, he used the truck winch system to pull the moose carcass from the kill site to where the Carusis

found it, with the strap around its neck. Li at para. 78. [19] In summarizing his decision, the trial judge said: [90] To summarize the case against Mr. Xiao, the cumulative effect of the proven facts establishes, beyond a reasonable doubt, thatthe only reasonable inference to be drawn is that he shot and killed the moose at a time when the season was closed, he had possession ofthe moose when attempting to load it into the Ford Raptor, and he failed to retrieve the moose after having shot it. Li at para. 90. Discussion [20] The Criminal Code requires the giving of notice before expert evidence can be called.

Section 657.3(3) sets out the procedurefor the giving of expert evidence; it is for “the purpose of promoting the fair, orderly and efficient presentation” of expert testimony. [21] Officer Dahl was not giving expert evidence when he described what he saw when he examined the carcass. However, once hegave an opinion as to what conclusions he derived from his observations, he crossed the line into expert evidence. [22] The trier of fact may draw inferences from proven facts.

A qualified expert witness may provide the trier with a “ready-madeinference” in those areas where the trier requires the assistance of a witness possessing special knowledge or expertise. [23] Opinion evidence is limited: As a general rule, a witness may not give opinion evidence but may testify only to facts within her or his knowledge, observation andexperience. It is the province of the trier of fact to draw inferences from the proven facts.

A qualified expert witness, however, mayprovide the trier of fact with a ready-made inference” which the jury is unable to draw due to the technical nature of the subject matter,thus, expert opinion evidence is permitted to assist the fact-finder to form a correct judgment on a matter in issue since ordinary personsare unlikely to do so without the assistance of persons with special knowledge, skill or expertise. Alan W, Bryant, Sidney N. Lederman & Michelle K.

Fuerst, The Law of Evidence in Canada, 3rd Ed. (Markham, Ont: LexisNexis,2009) at 771. [24] An expert witness does not need to have his name adorned with university degrees and titles. A lay witness may give opinionevidence as long as he is properly qualified. Once properly qualified, the evidence becomes admissible and the trier of fact attaches theappropriate weight to it.

However, before a weighing of the evidence can be done, the evidence must be properly admitted. [25] There are certain matters that a lay witness may give opinion evidence without crossing the threshold of an expert witness.Those include such matters as age, speed and weather: R. v. Graat, (SCC), [1982] 2 SCR 819 at p. 837. [26] Officer Dahl provided the court with an extensive history of his experience in examining carcasses to establish the time of death.His examination relied on various observations and findings. He used those facts to formulate an opinion since he, of course, had notwitnessed the death.

This was a classic example of the tendering of expert evidence. [27] Officer Dahl may very well have been qualified to give an opinion. His qualifications may or may not have been more reliablethan the Carusis’. However, Kyle Carusi’s evidence of time of death was objected to. The comment of the trial judge and the moving onof counsel to another area is consistent with the objection being upheld. Kyle Carusi was an experienced hunter and appeared to beknowledgeable with respect to the issue of time of death.

Preventing a cross-examination on that area, yet allowing Officer Dahl to treadon the same evidentiary ground, was unfair to the accused. [28] The purpose of providing notice of expert evidence is fairness. The notice allows the defence to properly prepare for cross-examination and, if necessary, to consult with or call its own expert. Mr.

Xiao was deprived of those benefits and that resulted in anunfair trial. [29] The best venue to assess and weigh the evidence to determine whether the Crown has proved its case is the provincial court.That court will have the benefit of hearing and seeing the witnesses. [30] As a result of my finding that Mr. Xiao did not receive a fair trial, the appeal is allowed and the matter remitted to the provincialcourt for a retrial. “S.D. Dley J.” DLEY J.