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BCCA | 2004 BCCA 216 | R. v. Berg | 2004-04-13T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/02/2004bcca0216.htm | 2026-01-18T10:21:06.417000 |
2004 BCCA 216 R. v. Berg
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Berg,
2004 BCCA 216
Date: 20040413
Docket: CA031083
Between:
Regina
Respondent
And
Timothy Ralph Berg
Appellant
Before:
The Honourable Mr. Justice Lambert
The Honourable Madam Justice Ryan
The Honourable Mr. Justice Low
Oral Reasons for Judgment
S. Goldberg
Counsel for the Appellant
S.J. Brown
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
13 April 2004
[1] LAMBERT, J.A.: This is an application for release from custody pending the hearing of a sentence appeal. Mr. Berg also appealed against conviction and that appeal was dismissed this afternoon.
[2] Mr. Berg has a long record of driving offences and a record which includes other kinds of comparatively minor offences. But apart from this incident, Mr. Berg's last conviction for a motor vehicle offence occurred in 1988.
[3] The question that I must consider is whether there is any possibility that the appellant might be successful in his sentence appeal in having the sentence reduced to one that involves no period of incarceration or having one that involves a period of incarceration which would have expired, taking into account the time off on mandatory parole before the new date set for the hearing of the sentence appeal, namely 16 July 2004 at 10:00 a.m.
[4] In my opinion, there is such a possibility of such a reduction in sentence, though I form no opinion of the appropriateness of such a reduction were it to be made. In those circumstances the appeal has, in my opinion, sufficient merit that it would be an unnecessary hardship if Mr. Berg were detained in custody, particularly since he now has regular employment in what seems to be a good job and he might well be able to continue in that employment uninterrupted. He has reported very faithfully during the period of his release pending his conviction appeal and though he had one slip-up in relation to his release pending trial, the Crown does not rely on the fact that he has not established that he will surrender himself or that he has not established that his detention is not necessary in the public interest.
[5] In the circumstances I have described, I grant the release order on the undertaking by the appellant on the same terms as those that had been in effect up until now. The surrender date will be the 16th of July and he should surrender himself at the Law Courts at 800 Smithe Street in Vancouver before 9:00 a.m. on that day.
[6] The release order is granted accordingly.
[7] RYAN, J.A.: I agree.
[8] LOW, J.A.: I agree.
"The Honourable Mr. Justice Lambert"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 177 | Reid v. British Columbia Egg Marketing Board | 2004-03-18T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0177.htm | 2026-01-18T10:22:42.938000 |
2004 BCCA 177 Reid v. British Columbia Egg Marketing Board
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Reid v. British Columbia Egg Marketing Board,
2004 BCCA 177
Date: 20040318
Docket: CA030991
Between:
Alfred Reid and Olera Farms
Respondents
(Plaintiffs)
And
British Columbia Egg Marketing Board
Appellant
(Defendant)
Before:
The Honourable Chief Justice Finch
The Honourable Madam Justice Huddart
The Honourable Madam Justice Saunders
Oral Reasons for Judgment
R.P. Hrabinsky
Counsel for the Appellant
W. Baker
Counsel for the Respondents
Place and Date:
Vancouver, British Columbia
18 March 2004
[1] SAUNDERS, J.A.: This appeal concerns an order certifying the action brought by the respondents Alfred Reid and Olera Farms Ltd., as a class action under the Class Proceedings Act, R.S.B.C. 1996, c. 50. The reasons for judgment of the learned chambers judge may be found at 2003 BCSC 985. The statement of claim, which is lengthy, alleges that the British Columbia Egg Marketing Board acted wrongly in matters concerning the organic egg market, causing the plaintiffs loss that is recoverable at law. The class is defined as:
All persons who, as of December 2000, were in the business of producing table eggs certified organic in accordance with the Agri-Food Choice and Quantity Act, R.S.B.C. 1996, c. 20 or, prior to 1996 certified organic in accordance with standards set by BCARA or other certifying bodies within British Columbia as of December 2000.
[2] Excluded from the class are:
All persons who were producing organic eggs under the Temporary Restricted Licence Quota Program ("TRLQ") as at or following January 9, 2002.
[3] Mr. Reid, Olera Farms and other organic egg producers have for many years produced and sold organic eggs. They did so outside the provincially regulated egg marketing scheme. It is pleaded that, with others, they developed both the British Columbia market for organic eggs and the standards for production. Those standards, it is said, increase costs of production. Evidently the market grew.
[4] It is pleaded that in 1998 negotiations commenced to establish terms upon which organic producers would enter regulated production. Eventually this led to mediation. It is alleged that an association of organic growers, the Certified Organic Associations of British Columbia, "provided confidential information to the Egg Board on the condition that such information would remain confidential and would not be used for any purpose other than the mediation". The negotiations and mediation did not produce a resolution satisfactory to Mr. Reid, Olera Farms and others. The Egg Board issued extra quota to producers under the regulatory scheme. It is alleged that the new quota was given for production of organic eggs roughly equal in volume to that which had been produced outside the regulatory regime, driving down the price of organic eggs and causing loss to members of the class.
[5] The statement of claim alleges misuse of confidential information, public misfeasance, unlawful interference with contractual relations and lack of jurisdiction.
[6] The first application for certification was rejected, in part, on the basis that the common aspects of the proposed common issues did not predominate over the individual issues, that, given the issues then framed, a class action was not the preferable procedure. A second application was made re-stating the proposed common issues, leading to the order appealed. In her reasons for judgment the chambers judge articulated the principles that govern the application and made the order for certification.
[7] The Egg Board appeals the certification order. While it agrees that the chambers judge correctly set out the governing principles, it contends she erred in articulating as common issues questions which subsumed, and turned on, individual issues, and in concluding that a class proceeding was preferable to individual actions. It is concerned that it will be hampered in its proper defence of the case by its inability to adequately explore what it says are underlying individual issues that necessarily will require resolution in the course of determining the stated common issues. An example will suffice. One common issue posed is:
unlawfully using confidential information provided to it by individual members of the plaintiff class and sub-class in the context of the negotiations and mediation referred to in paragraphs 35-68 of the statement of claim, or otherwise, to the detriment of members of the plaintiff class and sub-class
The Egg Board says that determination of that issue will require determination of the source and confidential status of information said to be misused.
[8] In answer, the respondents say that the chambers judge was correct in focusing on common issues which, when determined, will efficiently promote conclusion of the claims, even if ultimately individual enquiries must be made to determine entitlement to damages.
[9] Notwithstanding the able submissions of Mr. Hrabinsky, I am satisfied that the common issues, read in the context of the reasons for judgment and the pleadings, focus properly upon common, not individual issues. The issues in the case are, broadly, whether the Egg Board owed a duty to members of the class, whether it breached the duty, and whether the breach caused damages to members of the class. The common issues framed are directed to the duties owed by the Egg Board and the behaviour of the Egg Board, issues common to the claims of members of the class. I cannot conclude there is an error in law in the conclusion that certain issues are common.
[10] Nor in my view is there a basis on which to interfere with the chambers judge's conclusion that certification is preferable, bearing in mind those issues required to be considered under the Class Proceedings Act. A class proceeding is a dynamic process. Should the common issues require pruning or grafting in the future, should the Egg Board find it is hampered in preparing its defence on the issues, or should the issues require some modification to ensure an over broad question is not answered on an over narrow evidentiary foundation, the Egg Board may apply for amendment to the issues. But there being, in my view, no error of law or misapprehension of the circumstances, I see no valid basis on which to interfere at this time. I would dismiss the appeal.
[11] FINCH, C.J.B.C.: I agree.
[12] HUDDART, J.A.: I agree.
[13] FINCH, C.J.B.C.: The appeal is dismissed.
"The Honourable Madam Justice Saunders"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 214 | R. v. Berg | 2004-04-13T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/02/2004bcca0214.htm | 2026-01-18T10:21:08.673000 |
2004 BCCA 214 R. v. Berg
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Berg,
2004 BCCA 214
Date: 20040413
Docket: CA031083
Between:
Regina
Respondent
And
Timothy Ralph Berg
Appellant
Before:
The Honourable Mr. Justice Lambert
The Honourable Madam Justice Ryan
The Honourable Mr. Justice Low
Oral Reasons for Judgment
S. Goldberg
Counsel for the Appellant
S.J. Brown
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
13 April 2004
[1] RYAN, J.A.: The appellant was convicted of failing to remain at the scene of an accident and impaired driving contrary to ss. 252(1)(b) and 253(a) of the Criminal Code.
[2] The incident which led to the convictions occurred on June 28, 2000 in Crescent Beach.
[3] In the late afternoon of that day, a vehicle owned by a friend of the appellant, Sheryl Godfrey, hit a parked car as the driver attempted to turn around in a by-pass. The driver of the vehicle backed up, hit another vehicle and sped off. The first vehicle was described as being "totalled" and the car which hit it had significant front end damage.
[4] The only question at trial was whether the appellant was driving the vehicle at the time of the accident.
[5] Several people witnessed the actions of the vehicle in and around the time of the first accident. A man walking in the area with his young son, Mr. Tarabas, saw the vehicle moving erratically before the accident. He identified the appellant as the sole occupant and driver of the vehicle. He described the driver as "fortyish, with brownish hair that was receding a little, white and kind of scruffy, possibly wearing a moustache".
[6] The owner of the first vehicle struck in the accident, Mr. Basra, observed the event. He too identified the appellant as the sole occupant and driver. He described the driver as a Caucasian male in his late 30's or early 40's.
[7] An off-duty police officer, Sergeant Airey, was driving home along Crescent Road and saw the offending vehicle as it approached him soon after the accident. The vehicle was badly damaged. The officer decided to investigate. Sergeant Airey testified that as the vehicle passed him he saw one occupant, the driver, who he described as a white male, 35 to 45 years old, with shoulder length brown hair. The officer made a U-turn and followed the vehicle. He provided his description to an on-duty officer, Constable Poirier, who was in the area and continued his pursuit.
[8] Sergeant Airey came upon the person he identified as the driver getting out of the car at the intersection of Crescent Road and 136th Street. He pulled over and made his way back to the car. By this time, the person he said was the driver was walking down the road. The officer followed the man who, on seeing that he was being followed, ducked into a hedge and tried to hide.
[9] Sergeant Airey arrested the man. He identified the appellant as the person who he had observed and arrested on the day in question. Constable Poirier testified that the person in Sergeant Airey's custody fit the description he had given him before the arrest.
[10] The theory of the defence was that Ms. Godfrey's brother was driving the car at the time of the accident and that the appellant, who had been drinking heavily that day, was passed out in the front passenger seat of the vehicle when the accident occurred. The appellant testified that he left the car when he was shaken awake by the brother of the owner of the car, who told him "to get the hell out of here".
[11] Ms. Godfrey's brother had, unfortunately, passed away by the time of the trial. Ms. Godfrey testified that her brother had taken her car that day when the appellant was passed out in the passenger seat. Ms. Godfrey testified that her brother telephoned her the day after the accident. She testified:
He told me he was sorry, and that he would repay me for any damages he did. And I said, "you're lucky you are calling me right now."
[12] Ms. Godfrey also identified a photograph of her deceased brother which was placed into evidence. The brother apparently has some First Nations heritage. He was in his mid-twenties at the time of the accident and had long, shoulder length hair.
[13] While all of the witnesses identified the appellant as the driver, counsel for the defence, Mr. Goldberg, submitted that the evidence of identification was weak, that the witnesses could not be sure who the driver was, and that the trial judge ought to have a doubt based on the appellant's testimony and the evidence of Ms. Godfrey as to what her brother told her.
[14] During his submissions to the trial judge, Mr. Goldberg said, referring to Ms. Godfrey, "She has said the brother told her that he drove..." The trial judge interrupted, saying that he did not think that Ms. Godfrey said that. The trial judge said, "He just said, I'm sorry, and I'll pay for the damage. He never said he was driving." And then said later, "I can think of lots of reasons why he would still offer. I mean, it's his sister's car, on her evidence, and if he let Mr. Berg drive and they did all these things..."
[15] In his reasons for judgment the trial judge summarized Ms. Godfrey's evidence about her brother's statements in this way. He said, "She spoke to her brother the next day by phone and he said he was sorry and that he would repay her for the damage done."
[16] In the end, the trial judge convicted Mr. Berg. He recognized the frailties of the identification evidence but reached the conclusion that the identifying witnesses had described a person who looked like the appellant, not Ms. Berg's brother. The trial judge said this at paras. 30 to 32 of his reasons for judgment:
[30] In the case of the witness, Tarabas, his description of the driver was detailed enough that in my opinion he had to be looking at Mr. Berg and not Mr. Godfrey. He described the driver as 40-ish, brown hair maybe receding a little bit, white with possibly a moustache. That description fits Mr. Berg pretty well and it does not fit Mr. Godfrey at all.
[31] The evidence of the witness, Mr. Basra, was more general and less specific. He described the driver as late 30s, early 40s and white, which could not be Mr. Godfrey either. Mr. Godfrey was only 24 or even 27 in the year 2000 and his face in the photograph is of a young man and does appear part native.
[32] If Mr. Basra's evidence was the only evidence of identification, that might not be good enough in my view for a conviction. However, his evidence was consistent with Mr. Tarabas' evidence and I am satisfied that they were talking about the same person, Mr. Berg. I am satisfied of that beyond all reasonable doubt.
[17] In disbelieving the appellant the trial judge noted that the vehicle that was hit by Ms. Godfrey's car was totalled in the first collision, and, that another car was struck as well. The trial judge noted that in spite of sleeping through these accidents the appellant said that he was jostled awake by Ms. Godfrey's brother. He found that if the appellant had not been awaken by the accidents he would have had to have been comatose, and therefore could not have been awakened by Ms. Godfrey's brother by a "jostle".
[18] The trial judge also dealt with the evidence of the off-duty police officer. Sergeant Airey had made several identifiable mistakes in his evidence including his recollection of the colour of the vehicle and the length of hair of the driver. The trial judge discounted the evidence of Sergeant Airey to a large degree, but said this at para. 36:
I have to deal with Sgt. Airey's evidence. He gave evidence of a blue Ford driven by a person with shoulder length hair. Although Mr. Berg did not have shoulder length hair, Sgt. Airey pursued who he said was the driver and captured Mr. Berg and identified him in the courtroom. Sgt. Airey also pointed out the vehicle to Cst. Poirier when he attended and Cst. Poirier identified that vehicle as the one in Exhibit 5, not a blue car. Cst. Poirier also says he got a description from Sgt. Airey and when he came across Mr. Berg with Sgt. Airey it was the person who had been described to him. I am satisfied that Sgt. Airey was just mistaken in his recall and it was Mr. Berg whom he saw driving and who he chased.
[19] Mr. Goldberg advances two grounds of appeal. First he says that the trial judge did not properly examine the evidence of identity. He notes that the owner of the first vehicle did not provide a description of the driver to the police. He says that when he testified, Mr. Basra, the owner must have been describing the person he saw in court, not the person who he saw on the day in question. Mr. Goldberg says the same of the witness who was walking with his son, Mr. Tarabas, although in that witness's case, it is unclear whether he provided a description to the police at the time of the event or not.
[20] A reading of the transcript reveals that the witnesses were asked to provide a description of the person driving the offending vehicle. They were not cross-examined about the descriptions they provided, but about their certainty that the person in the dock was the driver of the vehicle. I am not persuaded that the trial judge was wrong in approaching the evidence of identity in the way that he did and in relying on what the witnesses said they recalled of the description of the driver. I would dismiss this ground of appeal.
[21] Next Mr. Goldberg submits that the trial judge misapprehended the evidence of Ms. Godfrey and that this misapprehension affected the verdict.
[22] I am not persuaded that the trial judge misunderstood what Ms. Godfrey said. The account she made of her brother's statement was ambiguous. It is not clear to me that when the brother said he would pay for the damage he did, that the "he" referred to the brother rather than Mr. Berg. This may be what the trial judge was referring to when he commented that the brother might have been offering to pay for the damage Mr. Berg did. In any event, the trial judge was not wrong in his observation that the brother did not say that he was driving.
[23] In the end, this aspect of the evidence was not made any clearer. I am not convinced that the trial judge misapprehended the evidence or that if he did it led to an error that went to the core of the judge's reasoning process.
[24] For these reasons I am not persuaded that the trial judge erred in reaching the conclusions that he did. While the issue in this case may be described broadly as one of identity, the real issue was which of two men committed the offence. The trial judge reached a reasonable conclusion on the evidence when he excluded Ms. Godfrey's brother and convicted Mr. Berg.
[25] I would dismiss the appeal.
[26] LAMBERT, J.A.: I agree.
[27] LOW, J.A.: I agree.
[28] LAMBERT, J.A.: The appeal is dismissed.
"The Honourable Madam Justice Ryan"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 182 | N.W. Construction (1993) Ltd. v. British Columbia (Workers' Compensation Board) | 2004-03-23T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0182.htm | 2026-01-18T10:22:20.564000 |
2004 BCCA 182 N.W. Construction (1993) Ltd. v. B.C. (WCB)
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
N.W. Construction (1993) Ltd. v. British Columbia (Workers' Compensation Board),
2004 BCCA 182
Date: 20040323
Docket: CA030630
Between:
N.W. Construction (1993) Ltd.
Appellant
(Petitioner)
And
Workers' Compensation Board of British Columbia
Respondent
(Respondent)
Before:
The Honourable Mr. Justice Lambert
The Honourable Mr. Justice Donald
The Honourable Madam Justice Huddart
Oral Reasons for Judgment
S. Dev Dley
Counsel for the Appellant
S.A. Nielsen and
M. Powers
Counsel for the Respondent
Place and Date:
Kamloops, British Columbia
23 March 2004
[1] DONALD, J.A.: N.W. Construction (1993) Ltd. appeals from the order of Mr. Justice Blair pronounced 10 February 2003 dismissing its petition for judicial review of a decision dated 21 June 2002 of the Appeal Division of the Workers' Compensation Board assessing penalties against the company. The neutral citation for the reasons for judgment below is 2003 BCSC 224. They are reported at (2003) 1 Admin. L.R. (4th) 77 and can also be found on Quicklaw at [2003] B.C.J. No. 328.
[2] The matter concerns an industrial injury suffered by a carpenter employed by the company during the construction of a three storey walk up condominium complex in Kelowna. The injury occurred when the worker was installing joist hangers while standing on an I-beam. He lost his balance and landed awkwardly on the cement slab below. He sustained a fractured wrist and a compression fracture of a vertebra in his lower back.
[3] Several days later a safety officer from the Board went to the construction site and measured the height from the beam to the floor and found the distance to be 10 feet one half inch. Sections 11.2(1) and 20.7 of the Occupational Health and Safety Regulations made pursuant to the Workers' Compensation Act (the "Act") require an employer to provide fall protection for employees working at a height of 10 feet or more. No such protection was in place when the accident occurred.
[4] During the investigation, the Board advised the company that for failing to follow the safety regulation, the Board was considering assessing the company an administrative penalty in the amount of $8,929.08 as provided by s. 196(6) of the Act, as well as a cost levy in the amount of $5,905 under s. 73(1) of the Act. Such a levy is applicable when an injury to a worker is due substantially to the gross negligence of an employer, the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases, or the failure of an employer to comply with the Board's orders or directions or with the regulations made under Part 3 of the Act. The company disputed the Board's contention, indicating the beam from which the worker fell was somewhat less than 10 feet above the surface.
[5] On 5 October 2001 a Review Officer of the Board conducted a hearing and ultimately imposed an administrative penalty and cost levy in the amount of $14,834.08.
[6] The company appealed the ruling.
[7] On 9 May 2002 an appeal was heard before a single member panel of the Appeal Division. The company was represented by counsel. Renald Bedard, the company's president, attended as the company's instructing representative. Mr. Bedard gave evidence on the company's behalf. The presiding member of the Appeal Division directed Mr. Bedard to leave during that part of the hearing when evidence was taken from two employees of the company. No objection was taken to the exclusion of Mr. Bedard. The company's counsel remained in the hearing.
[8] The Appeal Division confirmed the findings of the Review Officer but reduced the administrative penalty by 30%.
[9] On judicial review the company sought to quash the decision of the Appeal Division on the ground that it erred in rejecting the company's defence of due diligence, and on the further ground that it breached natural justice by excluding the company's president for part of the hearing.
[10] The reviewing judge found that the question of due diligence was within the jurisdiction of the Board and as such any decisions in relation to that question are protected by the strong privative clause in s. 96(1) of the Act. He could not say that the determination that the company failed to exercise due diligence was patently unreasonable. Turning to the natural justice issue, the reviewing judge took the view that in the absence of evidence to suggest a concern that Mr. Bedard might intimidate the two witnesses from whose evidence he was excluded, there was no justification for the exclusion. However, he was not prepared to conclude that the procedural error affected the fairness of the hearing to the extent that the matter should be returned to the Appeal Division for reconsideration. He said this at para. 36 of his reasons:
Although I find that the Appeal Divsion's procedure in excluding Mr. Bedard from part of the hearing cannot be justified, I am not prepared to conclude, in the absence of either an objection to the exclusion or evidence of prejudice to N.W. Construction, that an error occurred such as to return the matter to the Appeal Division for further consideration.
[11] In this Court the company renews the issues raised below and contends that the reviewing judge erred in not finding the Appeal Division's ruling on due diligence to be patently unreasonable and further that he erred in refusing to quash the orders on the basis of the unjustified exclusion of Mr. Bedard.
[12] Dealing first with the issue of due diligence, the Board had, on the one hand, the actual measurement taken by the safety officer at the site and, on the other, the evidence led by the company that the workers and their supervisors went by the blueprints which indicated to them that the beam height was fractionally lower than 10 feet. The appellant's contention is that it was patently unreasonable for the Board to disregard the good faith efforts on the part of the company to comply with the height regulation by relying on the plans and that it was equally unreasonable to expect an employer to measure the distances on site when the plans indicate that the workers would be working below the 10 foot elevation.
[13] In my opinion, what constitutes due diligence in an effort to comply with the safety regulations under the Act is a matter fully within the area of expertise of the tribunal. The Board's decision cannot be questioned on anything less than a demonstration that it was patently unreasonable. I regard the company's argument as an invitation to substitute our opinion on the evidence for the Board's. This is strictly forbidden by the privative clause. It is sufficient to say that there was some evidence supporting the finding of no due diligence. For instance, there was evidence from the company that the actual elevations might vary somewhat from the plans. Since there was a risk that the installation may be 10 feet or higher I do not think it was patently unreasonable for the Board to hold that reliance on the plans showed less than due diligence. Nor can I say that it was clearly irrational (another way of stating the review test) for the Board to find implicitly that if the elevations might reach the 10 foot level the employer should either measure the distance or put up the protection. Strictness in worker safety is hardly irrational. I would reject the first ground of appeal.
[14] The second ground of appeal relates to the exclusion of Mr. Bedard from the hearing. The company submits that the reviewing judge ought to have acted on his finding that the exclusion was unjustified by quashing the decisions.
[15] With respect, I do not agree that the Appeal Division can be faulted for the exclusion. The effect of the exclusion was not, as contended, to deny a party the opportunity to attend the hearing. The party in question was the company, not Mr. Bedard. The company was represented by counsel who remained in the hearing while the two witnesses testified. The company was not excluded.
[16] It is said that Mr. Bedard had a right to remain but that point was not raised with the presiding member. Had there been an objection to the exclusion when the order was made, arrangements could have been made for someone else to instruct counsel or alternative procedures could have been explored. But in any event, the complaint of unfairness is unconvincing when it is considered that the company's counsel was free to discuss the witnesses' testimony with Mr. Bedard at any time. It appears the purpose of the exclusion was not to prevent Mr. Bedard from hearing the testimony but rather to put the two witnesses at ease.
[17] The reviewing judge felt that the exclusion order had to be justified by some evidence of intimidation. I would not want to question the judgment of the presiding member in this way. The tribunal must have ample room to fashion procedures for the taking of evidence in ways that best achieve the objects of the Act. It is reasonable to infer that the presiding member thought that the two witnesses, both employees of the company expected to give evidence favourable to the company, might testify more freely in the absence of Mr. Bedard. I regard this as an exercise of discretion in a procedural matter which attracts a high degree of deference. The Board has vast experience in observing the relations between employers and employees. Given the usually dominant position of the employer and the somewhat dependant position of the employee in most relationships, it does not seem unreasonable to take steps to reduce the pressure on an employee when testifying in a matter affecting the employer. This is subject of course to the fair hearing requirement; but, as I have said, the employer was never excluded from the hearing and no one objected to Mr. Bedard's exclusion at the time. To require evidence of intimidation as a basis for excluding a witness, as the reviewing judge said was necessary in this case, is to unduly constrain the tribunal's ability to conduct an effective hearing. I would not uphold the second ground of appeal.
[18] It follows that I would dismiss the appeal.
[19] LAMBERT, J.A.: The appellant in its factum sets out the two errors in judgment on which it relies in making its argument. It does so in these words:
18. The learned trial Judge erred in ruling that the Respondent's application of the defence of due diligence was founded on a rational basis.
19. The learned trial Judge erred in law in ruling that although the exclusion of Renald Bedard from the appeal hearing could not be justified, the absence of objection by the Appellant, or evidence of prejudice to the Appellant, precluded the relief sought.
[20] On the first error in judgment, which I will refer to as a ground of appeal, I agree with the reasons of Mr. Justice Donald and I have nothing to add.
[21] On the second ground of appeal, I prefer to state my own reason for reaching the some conclusion as the conclusion reached by Mr. Justice Donald. I do not wish to embark on an analysis of the position of an officer of a company as representing the company in a hearing. I do not wish to embark on the question of whether a designated officer or a significant officer is entitled to be present and I do not wish to embark on the question of whether the procedure before an Appeal Division of the Workers' Compensation Board is any different from any other tribunal or court in this respect.
[22] I have reached my conclusion on the basis of the straight-forward reason that the company was represented by counsel at the hearing, that both the counsel and Mr. Bedard were in the room when the Appeal Division officer was hearing the appeal and made the order that he did, requesting Mr. Bedard to leave. At that point Mr. Bedard and his counsel together or separately could have objected to that order. Neither of them objected and Mr. Bedard left. In those circumstances, I consider that if it constituted a breach of natural justice to require Mr. Bedard to leave, that breach was waived and cannot now be relied on in these judicial review procedure proceedings. Were it otherwise, counsel could take no objection to breaches of natural justice, even though they were remediable at the time and could wait until he knew whether the decision was going to be favourable or unfavourable and then make the objection only on the judicial review proceedings. For those reasons, I would conclude that no error has been demonstrated in the judgment of the trial judge on the second issue. I too would dismiss the appeal.
[23] HUDDART, J.A.: I would for the reasons of Mr. Justice Donald reject the first ground of appeal. For the reasons of Mr. Justice Lambert I would reject the second ground of appeal and I too would dismiss the appeal.
[24] LAMBERT, J.A.: The appeal is dismissed.
"The Honourable Mr. Justice Lambert"
"The Honourable Mr. Justice Donald"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 181 | R. v. Hadizadeh-Raeisi | 2004-03-23T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0181.htm | 2026-01-18T10:22:26.775000 |
2004 BCCA 181 R. v. Hadizadeh-Raeisi
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Hadizadeh-Raeisi,
2004 BCCA 181
Date: 20040323
Docket: CA029789
Between:
Regina
Respondent
And
Farid Hadizadeh-Raeisi
Appellant
Before:
The Honourable Madam Justice Southin
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Smith
Oral Reasons for Judgment
P. Stark
Counsel for the Appellant
A. Budlovsky
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
23 March 2004
[1] HALL, J.A.: This is a sentence appeal brought by the appellant relating to a conviction entered against him based on his guilty plea on a charge of confining that occurred in May of 2000. We have today dismissed an application to set aside the guilty plea and the result of that is that the conviction appeal stands dismissed.
[2] With respect to the sentence appeal, the Crown acknowledges that the sentence imposed was too high. The situation at the present time is that a probation order is running and would run in the normal course of events for approximately another six months. Counsel for the appellant seeks the relief of having the probation order end at the present time and it seems to me that that submission is well founded. Counsel for the Crown does not oppose that disposition.
[3] So in the circumstances of this case on this sentence appeal, I would simply order that the probation order that was a part of the sentence imposed on the appellant on 26 March 2002 shall expire on today's date which is March 23, 2004. I would allow the appeal in those terms and order that the probation order terminate as of today's date.
[4] SOUTHIN, J.A.: I think that one thing my colleague may have omitted is that leave to appeal sentence is granted and the order will follow in the manner ordered by him. We all agree to that.
[5] SMITH, J.A.: I agree.
"The Honourable Mr. Justice Hall"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 180 | R. v. Hadizadeh-Raeisi | 2004-03-23T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0180.htm | 2026-01-18T10:22:17.902000 |
2004 BCCA 180 R. v. Hadizadeh-Raeisi
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Hadizadeh-Raeisi,
2004 BCCA 180
Date: 20040323
Docket: CA029789
Between:
Regina
Respondent
And
Farid Hadizadeh-Raeisi
Appellant
Before:
The Honourable Madam Justice Southin
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Smith
Oral Reasons for Judgment
P. Stark
Counsel for the Appellant
A. Budlovsky
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
23 March 2004
[1] HALL, J.A.: This is an application by the appellant to obtain an extension of time in which to file an appeal from conviction and concurrently with that, an application to strike a plea that was entered in January of 2002 to a charge of unlawful confinement. The incident was said to have occurred in May of the year 2000. The argument today has centered around both aspects, the aspect of the extension of time and the aspect of the withdrawal of the plea.
[2] The history of the matter is not entirely clear in that we do not know much of what occurred between May of 2000 and January of 2002. However, it appears that there were a number of counsel involved and ultimately the appellant was self-represented when he appeared before a judge of the Provincial Court in January of 2002. From the colloquy that occurred between the counsel for the Crown and the appellant and the judge then presiding on the date that the plea was entered in January of 2002, it seems that there had been some suggestion or agreement that if he was going to plead guilty there might be a term of probation imposed as a sentence. At least the appellant asserted that. Crown counsel noted that was not necessarily the situation. The judge who received the plea pointed out that sentencing would of course be within the discretion of the court who moved ultimately to deal with that matter. It was envisaged at that time that a pre-sentence report would be obtained and that process would take several weeks. In the event, the plea was entered before a Provincial Court judge, not the Provincial Court judge who ultimately sentenced the appellant on March 26, 2002.
[3] The case for the appellant today, as I said, revolved around two questions, extension of time and striking the plea. I would say that this is a case in which the extension of time should be granted. I say that because there is evidence in the record that is indicative to me that at or around the time when the appeal period was running and up to the time when it expired, the appellant may have suffered from some mental difficulties or confusion. Therefore I would consider it in the interest of justice that the extension be granted because I do not think that we should hold it against him that he did not immediately perfect his appeal. So, I would be inclined to grant the extension of time.
[4] However, when I come to deal with the question of the striking of the plea, it seems to me that different considerations arise. In my respectful opinion reading the transcript as a whole the appellant indicated at the time he entered the plea in January of 2002, that he did appreciate what he was doing. He indicated he was going to enter a plea to that count and the Crown was going to stay the other four counts that were contained in the information relating to incidents of May and June of 2000. When it came to sentence proceedings in March 2002 the Provincial Court judge had before him a pre-sentence report that gave an extensive background of the appellant and some reference to the circumstances of the offence. However the probation officer noted that she had not been able to contact the complainant.
[5] The proceedings in March before the Honourable Judge Angelomatis included this discussion at pp. 12 and 13 of the transcript:
THE DEFENDANT: Can I talk about the other matter, guilt or not guilty, and what my impression was?
THE COURT: If he's going to make an application to strike the guilty plea, I have to listen to it, but I'm not -- the law on striking guilty pleas is very, very clear, and that is that he has to have a defence, number one. Number two, he has to have been under a misapprehension or a complete mix up as to what he was doing when he pled guilty. He's not going to get the guilty plea struck unless there's some very cogent, telling evidence, and that would involve the interpreter, whoever was there at the time, being called too.
THE CLERK: Your Honour, can you give an estimated time of how long this would take?
THE COURT: It could take anywhere from a half an hour to the day.
THE CLERK: Okay.
THE DEFENDANT: I can explain to you within one minute as to why --
THE COURT: Is this an application that he wishes to strike the guilty plea?
THE DEFENDANT: My impression was, up to this morning, that I would be put in a position to explain.
THE COURT: He's going to be given the opportunity to explain, but explanations don't deal with the issue of did he confine somebody or not. They can give a reason why, they can explain what led him to do it, but he pled guilty to confined.
THE DEFENDANT: I think I should better, then, plead "not guilty" then.
THE COURT: Yes, but he has to have a reason why.
THE DEFENDANT: I'm trying to. This happened around 3:00 in the morning. This lady without any money on her, we are talking about this --
THE COURT: Ms. Sherry Majoub, yes.
THE DEFENDANT: Yeah, whatever. I picked her up from her own home and the kids saw that. They know -- the kids know that they live -- she lives with me and every day I have -- had to give her a ride back home, whether she was drunk or whatever else at this three o'clock in the morning without money, without even having called a taxi -- the taxi to pick her up. She loves to go out. It is my responsibility as a human being, as someone who can think, has a brain. I cannot call the police and say I had some argument with this lady and she wants to leave and it is not safe for her to do so. Yes, in a way, forcibly I kept her there. I locked the door for 20 minutes. I gave her some juice for her to calm her down, and then gave her a ride home.
THE COURT: All right. Well, the fact that he refused to allow her to leave, in the circumstances he outlined, is in fact an unlawful confinement. Unless she is somebody who is under his care and is incapable of taking care of themselves, he has no right to stop them from leaving. His actions, whether they were motivated by her best interest or not, fail to recognize her inalienable right to leave when she wants to. So I'm not going to strike the plea. The plea stands.
[6] It seems to me that when one has regard to both what occurred on the occasion in January when the plea was entered and at the continuing proceedings in March that it cannot be successfully asserted that the appellant today is able to establish that there is any viable defence to the charge of confinement to which he pleaded guilty.
[7] One authority that seems to me to be perhaps illustrative of what this offence comprises is a case from the Ontario Court of Appeal in 1999. The case is R. v. Van Santen, [1999] O.J. No. 1576. In that case, a parent who was upset over something relating to her child went to the school and briefly locked the principal into the principal's office with the upset parent. That was found to be an unlawful confinement.
[8] Here the appellant clearly acknowledged in my respectful view, that he intended to detain the complainant from leaving his house. His motivation, he claimed, was for her good although obviously she was sufficiently upset that the police were contacted. But regardless of motivation, it seems to me that there can be no possible doubt but that he clearly intended to restrain her liberty and to confine her for a period of time. In my respectful opinion, that is within the terms of the offence that is set forth in the Criminal Code, which was the charge that he pleaded guilty to. Accordingly, because I do not consider that there could be any viable defence to this charge, I therefore consider that it would not be appropriate to allow the appellant to withdraw his plea and accordingly, I would therefore dismiss this appeal.
[9] SOUTHIN, J.A.: I agree. To my mind, it comes down to whether the learned Provincial Court judge, Judge Angelomatis, in the passage quoted by my colleague in his judgment, committed any error of law. I see no error at all in the way in which the learned judge dealt with the application to withdraw the plea of guilty. It follows from that that in fact there is no merit in the application to extend the time, which is perhaps working oneself going backwards rather than forwards in one's analysis. But whether on the footing that the application for extension of time is denied or it is granted and the appeal is denied, there is no foundation for this Court to do anything for this accused. To make things clearer, I would, however, agree to extend the time and thereupon to dismiss the appeal.
[10] SMITH, J.A.: I agree with the remarks of both my learned colleagues and with their proposed disposition.
"The Honourable Madam Justice Southin"
"The Honourable Mr. Justice Hall"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 18 | R. v. Tammie | 2004-01-15T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/00/2004bcca0018.htm | 2026-01-18T10:29:27.413000 |
2004BCCA0018.htm
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Tammie,
2004 BCCA 18
Date: 20040115
Docket: CA028666
Between:
Regina
Respondent
And
Aaron Bradley Tammie
Appellant
Before:
The Honourable Chief Justice Finch
The Honourable Mr. Justice Mackenzie
The Honourable Mr. Justice Lowry
S. Goldberg
Counsel for the Appellant
J.M. Gordon and B. McLean
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
December 4, 2003
Place and Date of Judgment:
Vancouver, British Columbia
January 15, 2004
Written Reasons by:
The Honourable Mr. Justice Mackenzie
Concurred in by:
The Honourable Chief Justice Finch
The Honourable Mr. Justice Lowry
Reasons for Judgment of the Honourable Mr. Justice Mackenzie:
Overview
[1] At the conclusion of the hearing we dismissed the appellant's appeal from his conviction for first degree murder with reasons to follow. These are the reasons.
[2] The appellant was convicted of the first degree murder of Patricia MacPherson for the second time on 7 June 2001. He was first charged on 9 December 1988, shortly after the nude body of Ms. MacPherson was found in a swampy area adjacent to the Newton Inn in Surrey, B.C. The first eight-day trial resulted in a conviction for first degree murder on 1 March 1990. At that trial, the appellant admitted that he had killed Ms. MacPherson. His unsuccessful defence was intoxication and lack of intent.
[3] No appeal was taken from that conviction until 1999 when an extension of time to appeal was granted on the ground that the appellant's former counsel had not acted on instructions to launch a timely appeal. On 19 October 1999, this Court allowed the appeal and directed a new trial on the ground that the charge to the jury on the issue of intention failed to meet the standard stated in R. v. Seymour, [1996] 2 S.C.R. 252, 106 C.C.C. (3d) 520. The retrial commenced on 29 May 2000 and resulted in a second jury guilty verdict of first degree murder on 7 June 2001. The retrial involved approximately three months of hearing days in voir dires, followed by another three months of evidence with the jury.
[4] After the verdict, the appellant applied for a stay of proceedings which was dismissed by the trial judge on 28 June 2001. This appeal followed.
[5] The appellant did not testify before the jury at his second trial, although on a voir dire he confirmed his admission and evidence at the first trial that he had killed Ms. MacPherson. The defence was successful in excluding the appellant's confession to police, which had been admitted at the first trial, on the ground that it was involuntary and obtained in breach of the appellant's Charter rights. Hair samples obtained from the appellant, and opinion evidence related to those samples, was also excluded. This opened the door to the defence strategy to raise doubt that the Crown's case was sufficient to prove the appellant's link to the homicide.
[6] The appellant raised numerous issues on this appeal which are addressed under the various headings below.
The verdict
[7] The appellant submits that the jury rendered an inconsistent verdict. The issue arises from the manner in which the verdict was received and recorded in the transcript as follows:
THE REGISTRAR: Members of the jury, have you reached a verdict?
MR. FOREMAN: Yes.
THE REGISTRAR: Mr Foreman, do you find the accused Aaron Bradley Tammie, as to the charge of first degree murder, guilty or not guilty?
MR. FOREMAN: Guilty.
THE REGISTRAR: As to the lesser included charge of second degree murder, guilty or not guilty?
MR. FOREMAN: Not guilty.
THE REGISTRAR: As to the lesser included charge of manslaughter, guilty or not guilty?
MR. FOREMAN: Not guilty.
[8] No issue was raised immediately with the manner in which the verdict was taken and the jury was discharged. The issue was raised later by Mr. Goldberg and the trial judge characterized it as:
. . . an accidental clerical error in the taking of the verdict. Madam Registrar and the court received the verdict of guilty to first degree murder from the foreman. That was the verdict of the jury. She ought to have stopped reading there, but accidentally went on to ask about second degree murder and manslaughter. I didn't say anything at that point, because I was of the view at that point that anything that happened after the guilty verdict to first degree murder was a nullity and redundant and I knew there was no confusion on the first question about the charge, because the verdict was clear and complete and everyone understood it to be so. The jury was clearly instructed five or six times in the charge that they must find all the essential ingredients of second degree murder proved beyond a reasonable doubt and then, in addition, certain additional ingredients in order to find the accused guilty of first degree murder, so the only recorded verdict will be guilty to first degree murder.
[9] It is common ground that having received the verdict of guilty of first degree murder, the registrar should have stopped there and not proceeded with the questions as to the lesser included offences of second degree murder and manslaughter.
[10] In my view, the trial judge was correct in her characterization of the answers to the questions related to the lesser included charges as redundant and not an indication of any confusion in the minds of the jury. I agree with her assessment that from the jury's point of view the verdict was entirely consistent. Their verdict of guilty of first degree murder precluded a verdict of guilty of the lesser included offences. Any other verdict on those offences would be logically inconsistent. I would not give effect to this ground of appeal.
The expert evidence issues
[11] These issues surround the expert evidence of a forensic pathologist, Dr. James Ferris, and a hair and fibre analysis expert, Staff Sergeant B.J. Wladichuk. The appellant contended that the hair and fibre opinion evidence should have been excluded. The appellant also submits that the trial judge unfairly restricted the ability of defence counsel to establish through cross-examination that the evidence of these witnesses was biased in favour of the Crown. The appellant also contended that the charge to the jury failed to adequately warn the jury of the frailties of scientific evidence.
[12] Dr. Ferris's opinion that the cause of death was strangulation was not in dispute. The contentious part of his evidence related to a liver laceration on the victim's body. At the first trial he concluded that the laceration probably was caused shortly before death. He changed his opinion and concluded it was probably post-mortem at the retrial, based on his experience in the intervening years. The pathologist called by the defence was unable to come to any firm conclusion one way or the other. The liver laceration was not a contributing cause of the victim's death and the opinions with respect to the timing of its cause were not central issues.
[13] The evidence of Staff Sergeant Wladichuk was that hair samples found on the bedding in the appellant's room at the Newton Inn were microscopically consistent with the hair of the victim. He also concluded that acrylic fibres removed from the victim's torn jeans as well as fibres from a top and sweater seized from the appellant's residence were indistinguishable from fibres used in the blanket. He cautioned that hair and fibre comparisons were not a positive means of identification.
[14] Staff Sergeant Wladichuk had been an expert in the comparison and identification of human hair and textile fibres during the initial investigation and at the time of the first trial. He testified that DNA analysis had supplanted hair and fibre analysis in the early 1990s and as the emphasis shifted he had not kept up with the literature in the area of hair and fibre examination and was not aware of current protocols.
[15] Certain hair samples taken during the investigation and available at the first trial were subsequently lost or inadvertently destroyed. This came to the attention of the defence during the cross-examination of Staff Sergeant Wladichuk on a voir dire. Vaginal swabs containing semen taken from the body of the victim by Dr. Ferris were also apparently destroyed after analysis and the first trial.
[16] Staff Sergeant Wladichuk testified that the fibre samples were destroyed in the course of the examination process and that the slides of the hair samples were apparently destroyed in an RCMP lab sometime in the years intervening between the two trials. The hair samples were atrophied and lacking root sheath material and consequently not amenable for nuclear DNA analysis.
[17] The evidence of the expert witnesses was only marginally controversial. Much of Dr. Ferris's evidence was consistent with the opinions of the pathologist called by the defence, including the cause of death by strangulation, the estimated time of death, and indications that injuries to the back of the victim's neck were caused earlier than injuries to the front of the neck.
[18] The hair and fibre analysis was candidly admitted to be of limited value. Staff Sergeant Wladichuk did not dispute that forensic DNA technology had overtaken hair and fibre comparisons in the 11-year period between the first and second trials. He said in direct examination that hair comparison is not a positive means of identification and he agreed that his evidence did not independently prove that either the appellant or the victim had been in hotel room 214. While the comparison opinions were of limited weight I do not think that the trial judge erred on the evidence before her in refusing to exclude it entirely.
[19] As noted, Mr. Goldberg cross-examined these two witnesses for four days each in an effort to show bias favouring the prosecution. In his instructional textbook, An Advocacy Primer (2nd ed. 1997, p. 153), Lee Stuesser lists ten principles of effective cross-examination, commencing with "Be Brief" and ending with "Seize the Moment". Mr. Golberg's cross-examination flouted virtually all of them. Most of the questions were on collateral matters. Overall the cross-examinations were lacking in focus, repetitive, confused and insulting both to the witnesses and the judge. Many questions were either ineptly framed or improper, and required the intervention of the trial judge. In my view, the restrictions imposed by the trial judge on further cross-examination on collateral matters were fully justified. Cross-examination is not unlimited.
[20] The disclosure of lost exhibits from the first trial and Dr. Ferris's revised opinion were timely and did not contain any element of surprise that would adversely affect cross-examination.
[21] The trial judge gave a standard charge to the jury with respect to the expert evidence including the instructions that they were not required to accept the opinions of the expert witnesses, that they should assess the experts' impartiality, and that they should consider whether the loss or destruction of exhibits affected the Crown's case. In my view, that instruction was adequate in the circumstances of this case and no further instruction was required.
Refusal to permit reference to Milgaard, Morin and Marshall cases in cross-examination of Dr. Ferris and in closing
[22] The trial judge refused to permit reference to the Morin, Milgaard and Marshall cases by defence counsel in the cross-examination of Dr. Ferris and in his closing address to the jury as examples of miscarriages of justice, on the ground of risking that the jury could become inflamed and misled by the references. In my view, the rulings of the trial judge were not in error. The proper focus of the jury, as the trial judge emphasized in her charge, was the evidence adduced in the courtroom and nothing else. The possibility of a miscarriage of justice based on other cases risked distracting the jury from the proper focus on the evidence before them relating to the facts of the particular homicide in issue, and inciting them to decide the case on an improper basis extraneous to those facts. I do not think that there is any merit in this ground of appeal.
Admissibility of prior statements of Crown witnesses
[23] The defence submitted that the previous testimony or out of court statements of several witnesses should have been admitted for the truth of their contents under the principle of exception to the hearsay rule. Apart from Elizabeth Petry, the occupant of the room next to the room rented to the appellant at the Newton Inn, no application was made to admit the prior statements. The trial judge rejected the application with respect to Petry's statements on the ground that the test of necessity had not been met. Petry was present in court and the trial judge concluded that the reliability of her statements would be best assessed on her evidence as a whole, including her cross-examination on any prior statements. In my view there was no error in the trial judge's ruling. As the other witnesses were also in court and subject to cross-examination on prior statements, there was similarly no basis to admit those statements if there had been any application to do so.
Criminal Record Issues
[24] The trial judge refused to allow counsel for the appellant to elicit from a police witness the fact that the appellant did not have a criminal record. In my view, that ruling was correct. A criminal record goes to credibility. The appellant did not testify before the jury and there was no issue relating to credibility to which his record could be relevant.
[25] The trial judge also refused to allow counsel for the appellant to see the criminal file of the victim's father, Archie MacPherson Sr., which was sealed as the subject of a pardon. She relied on R. v. Paterson (1998), 122 C.C.C. (3d) 254 (B.C.C.A.). Counsel did not ask Mr. MacPherson Sr. about a criminal record in cross-examination and not having done so, I do not think it was open to attempt to lead evidence of his record through other witnesses, quite apart from the barrier presented by the pardon to disclosure of the record. Accordingly there was no error in the trial judge's ruling.
Collusion, Reputation and Propensity Issues
[26] The trial judge refused to permit cross-examination of several members of the victim's extended family with respect to propensity to violence, criminal activity and collusion, on the ground that the probative value of such evidence was outweighed by its prejudicial effect. The appellant submitted that the ruling resulted in an unfair trial.
[27] The trial judge allowed cross-examination of witnesses as to whether they had been intimidated or otherwise pressured by anyone with respect to their evidence. She refused to permit cross-examination on more remote collateral matters and she intervened to deal with questions that were improperly framed, vexatious or insulting. As noted above with respect to the cross-examination of expert witnesses, much of the questioning was confused and inept. In my respectful view, the patience of the trial judge was sorely tried by Mr. Goldberg and his cross-examination was given more than ample latitude in the circumstances. I do not think that there was any error in the limits that the learned trial judge imposed on cross-examination in the circumstances.
[28] The trial judge also refused to receive the evidence of Kelly Corbett which the appellant wished to tender with respect to discussion among witnesses outside the courtroom during a trial lunch break. The trial judge reviewed a statement of Ms. Corbett's prospective testimony and concluded that it was irrelevant and completely collateral to the issues before the jury. There is no basis to question that ruling.
[29] The trial judge also refused an application to have Shelley Taks recalled for further cross-examination as to whether she had been told before she gave evidence that a previous witness had been cross-examined about being on welfare. She ruled it was irrelevant and collateral. In my view, her ruling was within the trial judge's discretion: R. v. Pritchard (1997), 86 B.C.A.C. 140 (C.A.), paras. 19-20.
The Other Disputed Evidence of Shelly Taks
[30] Shelley Taks saw the appellant on 9 December 1988 and observed a mark on his neck. The trial judge refused to allow defence counsel to elicit in cross-examination her opinion that the mark "looked like a large hickey", on the ground that the witness was not qualified to express that opinion. Ms. Taks had no expertise that would qualify her to express an expert opinion and the jury had a photograph of the appellant from which they could observe the mark and draw their own inference. In my view, the exclusion of this evidence as unqualified opinion was within the discretion of the trial judge and there was no reversible error.
The application for a judicial stay
[31] After his conviction the appellant applied for a judicial stay of proceedings on the grounds of unreasonable delay within the meaning of s. 11(b) of the Canadian Charter of Rights and Freedoms, abuse of process based on the loss and destruction of exhibits between the first and second trials, and impairment of his s. 7 Charter rights to make a full answer and defence based on the loss and destruction of exhibits. The trial judge dismissed the application in reasons reported at [2001] B.C.J. No. 1949; 2001 BCSC 1219.
[32] The delay between the trials was the result of the failure to appeal the first conviction until 1999. The time for commencing an appeal was extended because of inaction on the part of the appellant's former counsel. The appeal was allowed because of a clarification of the law with respect to the proper jury instructions on the defence of intoxication, relied upon by the appellant at his first trial.
[33] The delay allowed the appellant to obtain the benefit of developments in the law that would not have been available on a timely appeal. As the trial judge noted, the loss of the hair samples and the vaginal swabs could not have raised a significant risk of a miscarriage of justice, inasmuch as the appellant admitted on a voir dire that he did have sexual intercourse with the victim and that he killed her. Those admissions were not before the jury but in the circumstances of this case I think that the trial judge was entitled to consider them on the stay application. The hair samples and slides were lost or destroyed some time after the appeal period from the first conviction had expired, apparently through inadvertence. The trial judge gave considered reasons for dismissing the stay application and in my view there are no grounds on which this Court could disturb her conclusion.
Conclusion
[34] The appeal was dismissed for the foregoing reasons.
"The Honourable Mr. Justice Mackenzie"
I AGREE:
"The Honourable Chief Justice Finch"
I AGREE:
"The Honourable Mr. Justice Lowry"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 179 | R. v. Gold | 2004-03-19T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0179.htm | 2026-01-18T10:22:38.642000 |
2004 BCCA 179 R. v. Gold
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Gold,
2004 BCCA 179
Date: 20040319
Docket: CA030065
Between:
Regina
Respondent
And
Troy Thomas Gold
Appellant
Before:
The Honourable Chief Justice Finch
The Honourable Madam Justice Huddart
The Honourable Madam Justice Saunders
Oral Reasons for Judgment
J.J. Blazina
Counsel for the Appellant
G.D. McKinnon, Q.C.
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
19 March 2004
[1] FINCH, C.J.B.C.: The appellant appeals his conviction on one count of second degree murder entered following his guilty plea in B.C. Supreme Court on 7 June 2002. The appellant says the guilty plea should be set aside as it was neither voluntary, unequivocal nor informed. The appellant seeks to adduce fresh evidence to support the argument that the plea was not voluntary. That application is not opposed. There is also an application to extend the time to file a notice of appeal and that application is not opposed.
[2] The Crown concedes that the guilty plea should be set aside, and the appeal allowed, although for slightly different reasons than those advanced on the appellant's behalf. The Crown's position is that the plea was voluntary, but that it was neither unequivocal nor informed.
[3] As, in my view, a new trial must be ordered I propose to say only what is necessary to explain why I agree that the guilty plea should be set aside.
[4] A preliminary inquiry was held by a Provincial Court judge. The evidence showed that a Mr. Martin Cotey was found dead, floating in Lake Okanagan, in the early morning of 7 August 2001. Cotey had sustained two stab wounds, one of which perforated his colon and lacerated his aorta, and was fatal.
[5] There was evidence that the appellant had been in an altercation with the victim, that the appellant had produced a knife, and that he had inflicted the stab wounds. There was also evidence that the appellant was intoxicated. After the event, the appellant was found to have sustained a stab wound to his chest, and other minor or superficial injuries.
[6] The appellant gave several statements to the police, which were not altogether consistent, but none of which appears to have been really inculpatory. He agreed he had been in a fight with the victim, and admitted to various degrees of drunkenness.
[7] The appellant was represented by counsel for at least part of the preliminary inquiry, but at a certain point before trial he decided he wished to proceed without counsel. He phoned the offices of Crown counsel and told a lawyer there he would plead guilty to second degree murder. He had been on medication for depression, but had stopped taking the medication a couple of weeks before he spoke to Crown counsel.
[8] On 7 June 2002, the appellant appeared before a judge of the B.C. Supreme Court for the purposes of entering a guilty plea. He was 19 years old at the time. The judge heard an outline of the case from Crown counsel. The judge tried to persuade the appellant to seek a jury trial, but the appellant said he wished to have the matter disposed of immediately.
[9] The charge was read to the appellant, and in response to the question of how he wished to plead, he responded "guilty".
[10] Crown counsel then outlined the case against him. The learned judge engaged the appellant in a discussion as to his understanding of the possible defences of self-defence and intoxication. The following exchange occurred:
THE COURT: Well, Mr. Gold, I mean, it's important for us to know whether or not you did stab in self-defence because if you were defending yourself, that certainly changes everything. So do you know whether or not you did stab him in self-defence or were you too drunk to know or what --
MR. GOLD: Well, sitting here, Your Honour, I was really intoxicated at the time of the offence and I -- I know I -- I know I stabbed him. I didn't -- didn't ex- -- intend to stab him to this -- this extent.
THE COURT: You intended to stab him but not for him to die is what you're saying. Is that what you're saying?
MR. GOLD.: Yeah, I guess.
THE COURT: Well, okay. You also say that you were very intoxicated or you were drunk, the different words that you've used. You were on a five-day -- five or six-day binge, drinking a flat of beer and whisky every day.
MR. GOLD: I was drinking -- I drank that summer is -- since I got out of jail and I had finished doing my -- when my grandma left town and stuff, it's guaranteed five days a week during that whole summer but mostly -- most of the time six days as well a week.
THE COURT: Well, were you way too drunk to know what you were doing?
MR. GOLD: (NO VERBAL RESPONSE)
THE COURT: Because you may have a defence here, sir, right. If you were defending yourself or that you were way too drunk to know what you were doing, there may be a defence here.
MR. GOLD: I don't see a defence, Your Honour.
THE COURT: Well, it's not -- and I'm -- I only react that way, sir, because if there's a possibility of a defence, that there was a possibility you didn't intend to do what you did because you were defending yourself -- I'm just trying to keep this in common language here -- then I think you should let the jury decide because if the jury says -- the jury could well say it was self-defence and then you'd take a walk, right.
MR. GOLD: It wasn't self-defence, Your Honour.
THE COURT: So you weren't so intoxicated or drunk or inebriated or whatever words you want to use that you didn't know what you were doing. You knew what you were doing?
MR. GOLD: Yes, Your Honour. I've been in numerous -- numerous knife fights before in the past, you know, some were -- turned out worse but I didn't do anything to this extent before so.
THE COURT: You said somewhere in your statement that you were just drunk and stupid. Does that sort of explain what went on there? What I'm concerned about is that you don't really remember what went on and you're just pleading guilty because you want to have something happen quickly, have some finality to this.
MR. GOLD: No, not necessarily. I know -- I do want to get on with it but I know I'm guilty of what I did because I did that. There's no question about it and I was the only one that was in possession of that knife. I know what I did was wrong and that's what I did. It's no self-defence because I was the one who was -- did that before anything ever happened. Anything that he'd be trying to be doing is to be defending himself.
THE COURT: And even you had been consuming a great deal of beer and whisky each day, you feel that you still were not so drunk that you didn't know what you were doing. You still basically knew what you were doing?
MR. GOLD: I was fully aware of what I was doing.
THE COURT: All right, sir. Okay. Anything else, then, about what Crown counsel has read in today that you want to say anything about, what she's read in?
MR. GOLD: No, Your Honour.
[11] The judge concluded:
THE COURT: All right. Well, sir, I find that I am satisfied that the facts as set out by the Crown here and taking into account also your comments, that the facts do support the plea and that your plea of guilty will stand.
[12] In my view, it is not necessary to inquire into whether the plea was voluntary, or whether the fresh evidence should be admitted, because I am satisfied that the plea was neither unequivocal nor informed.
[13] As appears from that portion of the transcript I have quoted, the trial judge made a fundamental error concerning the level of intoxication required for a successful defence of intoxication on a specific intent offence such as murder. The trial judge's misstatement of the law on this point continued throughout the proceedings and tainted his exchanges with the appellant about intent.
[14] When the judge asked the appellant whether he stabbed the victim in self-defence or "was too drunk to know", the appellant admitted to the stabbing, but did not make an unequivocal admission that he had one of the requisite intents under Code s. 229(a)(ii) for murder. The judge suggested to the appellant that what he was saying was that he intended to stab the victim but not for the victim to die. His answer was "yeah, I guess".
[15] The question under s. 229(a)(ii) of the Code is not whether the appellant had an operating mind or the capacity to know what he was doing. The requisite specific intent under that section is that the accused "means to cause [the victim] bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not". The test is whether an accused intended "to cause bodily harm of such a grave and serious nature that he knew that it was likely to result in the death of the victim": see R. v. Nygaard, [1989] 2 S.C.R. 1074 at 1087-88, 51 C.C.C. (3d) 417 at 435. The accused must have subjectively foreseen a likelihood of death flowing from the bodily harm inflicted on the victim, or have deliberately disregarded the fatal consequences which were known to be likely: see R. v. Cooper, [1993] 1 S.C.R. 146 at 154-55, 78 C.C.C. (3d) 289 at 295.
[16] The proposition that an accused must foresee a likelihood of death was never put to the appellant, and there is nothing in the record to show that he knew that was an essential element of the offence to which he was pleading guilty.
[17] After the appellant indicated that he intended to stab the victim but not for him to die, the judge put the wrong test for the defence of intoxication to the appellant on four occasions. The judge's questions were all directed at the appellant's general capacity to form intent. However, for the offence of murder, voluntary intoxication that does not cause an incapacity to form intent may still raise a reasonable doubt as to whether the accused actually had the requisite specific intent necessary for conviction: see R. v. Robinson, [1996] 1 S.C.R. 683, 105 C.C.C. (3d) 97, paras. 47-54. The judge stopped his questioning only after the appellant admitted that he was "fully aware" of what he was doing. Given the nature of judge's questions, that admission can only be taken as going to the appellant's general capacity to form intent, and not to whether he actually formed the specific intent required under s. 229(a)(ii).
[18] The appellant's uncertainty in his exchanges with the court about his knowledge and intent show that the plea was not unequivocal. Nor was the plea informed, given the appellant's inability to clearly recall the events, and the judge's repeated error about the level of intoxication required for a successful defence.
[19] In my respectful view, the guilty plea was neither unequivocal nor informed. It is invalid, and should be set aside, as there is a possibility of a miscarriage of justice if it is allowed to stand: see s. 686(1)(a)(iii) and R. v. J.G.T. (2003), 178 B.C.A.C. 29, 2003 BCCA 1, para. 17.
[20] I would allow the appeal, set aside the guilty plea, and order a new trial on the charge of second degree murder.
[21] HUDDART, J.A.: I agree.
[22] SAUNDERS, J.A.: I agree.
[23] FINCH, C.J.B.C.: So ordered.
"The Honourable Chief Justice Finch"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 178 | R. v. W. | 2004-03-19T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0178.htm | 2026-01-18T10:22:40.548000 |
2004 BCCA 178 R. v. Wheatley
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Wheatley,
2004 BCCA 178
Date: 20040319
Docket: CA031626
Between:
Regina
Respondent
And
Steven James Wheatley
Appellant
BAN ON PUBLICATION PURSUANT TO SECTION 486(3) C.C.C.
Before:
The Honourable Chief Justice Finch
The Honourable Madam Justice Huddart
The Honourable Madam Justice Saunders
Oral Reasons for Judgment
M.O. Screech
Counsel for the Appellant
V. Toselli
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
19 March 2004
[1] FINCH, C.J.B.C.: This is an application for leave to appeal sentence and if leave is granted an appeal from sentence imposed in Provincial Court on 10 February 2004.
[2] The appellant was charged with touching for a sexual purpose the body of a person under the age of 14 years. The relationship between the accused and the complainant is that the accused was the step-father of this 11 year-old girl.
[3] The learned trial judge imposed a sentence of nine months incarceration. The judge expressly declined to grant a conditional sentence. He imposed a probation order for a period of two years following completion of the sentence.
[4] On this appeal the Crown concedes that the judge erred in some of the comments that he made in the course of passing sentence.
[5] After quoting from the pre-sentence report the judge said this:
[14] It is to be noted that in the preceding two paragraphs there is a considerable lack of awareness on Mr. Wheatley's part in projecting onto the victim aspects of behaviour that are completely foreign to any normal relationship between an 11-year-old and a 32-year-old, and demonstrates the need for therapy for Mr. Wheatley. It is of concern to the court that notwithstanding the passage of time, that he has not availed himself of the sex offender treatment programs that are available. It is also of concern to note the internet usage that followed the incident and the lack of any reason for Mr. Wheatley to go to these websites. A further concern of the court is to the possible futility of enforcement of any conditional sentence provisions in a community setting.
[Emphasis added.]
[6] The Crown concedes that those expressions of concern are unreasonable because there was no evidence to support the statement that he had not availed himself of treatment or that enforcement of a conditional sentence in the community would be futile.
[7] The appellant contends on this appeal that a conditional sentence would have been a fit sentence and that it is open to this Court to impose a conditional sentence in lieu of the custodial sentence that the judge imposed. The Crown takes the position that, notwithstanding the errors referred to in the judge's reasons, that the sentence of nine months in custody was nevertheless a fit sentence. In the alternative, the Crown submitted that if the Court were disposed to grant a conditional sentence there were a number of conditions that the Crown would seek to have imposed.
[8] Having read the materials before us and listened to the able and thoughtful submissions of both counsel, I have not been persuaded that the judge erred in the sentence that was imposed in this case. The question for us is whether the sentence is a fit sentence having regard for the nature and circumstances of the offence and the circumstances of the offender. And as I say, in my view, I am not able to say that this sentence is unfit.
[9] I would grant leave to appeal but would dismiss the appeal.
[10] HUDDART, J.A.: I agree.
[11] SAUNDERS, J.A.: I agree.
"The Honourable Chief Justice Finch"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 215 | R. v. Couture | 2004-04-16T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/02/2004bcca0215.htm | 2026-01-18T10:20:36.900000 |
2004 BCCA 215 R. v. Couture
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Couture,
2004 BCCA 215
Date: 20040416
Docket: CA031054
Between:
Regina
Respondent
And
David Raymond Couture
Appellant
THERE IS A BAN ON PUBLICATION OF THE IDENTITY OF ANY VICTIM OR WITNESS PURSUANT TO SECTION 486(4.1) C.C.C.
Before:
The Honourable Madam Justice Levine
(In Chambers)
M.K. Woodall and I. Carter
Counsel for the Appellant
B. MacLean
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
March 24, 2004
Place and Date of Judgment:
Vancouver, British Columbia
April 16, 2004
Reasons for Judgment of the Honourable Madam Justice Levine:
Introduction
[1] The appellant, David Raymond Couture, was convicted by a Supreme Court justice of two counts of second degree murder and sentenced to life imprisonment with no eligibility for parole for 16 years. He has appealed his convictions, and applies for judicial interim release pending his appeal.
The Convictions
[2] The convictions were for the murders of two young women, his girlfriend, aged 25 and her friend, aged 19 years, in September 1986. Their decomposed bodies were found three months after they disappeared, in December 1986. The cause of death could not be determined and no forensic evidence could be obtained. The murders went unsolved until the appellant's convictions in July 2003.
[3] There was evidence that the appellant had been physically abusive to his girlfriend. He twice suggested to a man with whom she had developed a new relationship that "maybe he should just kill her". The trial judge found that in the month before the murders the appellant was "a controlling, possessive, jealous person and given to rages".
[4] The Crown's theory was that the appellant murdered his girlfriend in their home, murdered her friend because she was a witness to the murder, and borrowed his friend's truck to transport the bodies to the location where they were found in December 1986. At that time he asked his friend not to tell the police that he had used the truck.
[5] In 1989, the appellant was in jail on other charges when he met Mrs. Darlene Schwab, who attended at the prison as a Christian counsellor. At their second meeting, he told her details of the two murders. After his release on parole, he lived with Mrs. Schwab and her family for eleven months.
[6] In 1995, Mrs. Schwab divorced her husband and in 1996, she and the appellant were married. They separated in 1997, and (now) Mrs. Couture went to the police and made a statement setting out what the appellant had told her about the murders. She gave a second statement at the request of the police. The first statement was audiotaped; the second was videotaped. Neither statement was given under oath and Mrs. Couture was not cross-examined.
[7] The appellant and Mrs. Couture reconciled subsequent to Mrs. Couture giving the statement to police. In 2000, the appellant and Mrs. Couture met with their pastor and the appellant told the pastor he was responsible for or involved in the deaths of two people 14 years before. The appellant was arrested in November 2000.
[8] When the matter came to trial, Mrs. Couture was not compellable as a witness. The Crown sought to have her statements to the police admitted as evidence. After a voir dire, the trial judge found the statements to be admissible under the principled exception to the hearsay rule. She held that the test of necessity was met because Mrs. Couture was neither competent nor compellable to testify, and the test of threshold reliability was met, "taking into account the circumstances surrounding the two statements" (reasons for voir dire ruling, para. 17).
The Appeal
[9] The appellant challenges the trial judge's finding that Mrs. Couture's statement met the threshold test of reliability. In her reasons for the voir dire ruling, the trial judge referred to evidence of other witnesses corroborating that of Mrs. Couture. The appellant claims that the trial judge erred in law in referring to corroborating evidence in the context of determining the threshold reliability of an out-of-court statement for the purposes of the principled exception to the hearsay rule. He relies on R. v. Starr, [2002] 2 S.C.R. 144 where Iacobucci J. said (at para. 217):
At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal's decision in R. v. C. (B.) (1993), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability.
[Underlining added.]
[10] Counsel argues that the statements made by Mrs. Couture were the most significant pieces of evidence implicating the appellant in the murders and therefore this would not be an appropriate case to apply the "curative provision" in s. 686(1)(b)(iii) of the Code.
Appellant's Background
[11] The appellant is 43 years old. He has a grade 11 education. He has resided in British Columbia since 1976. He has a lengthy criminal record, dating from 1978. In addition to offences involving property, one offence of driving while impaired and one offence each of possession and trafficking in a narcotic, he has been convicted of offences involving violence, including assault with a weapon in 1984, robbery in 1988 and assault in 2000.
[12] The appellant was released on bail pending his trial on strict conditions. He was confined to his home with Mrs. Couture 24 hours a day, except for the purposes of employment. He was allowed to go to his counsel's office, church and medical and dental appointments, but only while accompanied by Mrs. Couture. He was required to report at least once a week to his bail supervisor. A further condition, which Crown counsel suggested was unenforceable, required Mrs. Couture to advise the bail supervisor forthwith "if there are any occurrences of concern" to her. In describing the effect of the conditions, appellant's counsel said that Mrs. Couture was effectively the appellant's "jailer".
[13] The appellant was employed while on bail. In a supporting letter, one of his employers stated that the appellant and Mrs. Couture worked together well as a team and appeared to enjoy working together.
[14] The trial judge commented in her reasons for sentence on the appellant's "attempts to control his life" and his conversion to Christianity which began in 1989 and has progressed since that time. She had before her 37 letters of reference filed in his support. She said (at para. 6):
The evidence at trial, along with submissions today, lead me to believe that there has been a significant change in David Couture from the man who murdered Darlinda and Karen 17 years ago. His rehabilitation may be said to have begun, but it is not certain by any means.
[15] She also referred to evidence that indicated that the appellant "still has problems with his anger".
Statutory Criteria for Release
[16] On this application for judicial interim release, the appellant must establish that he has met the three criteria set out in section 679(3) of the Criminal Code:
(a) the 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.
[17] The Crown takes no issue with the first two matters. Crown counsel concedes that the appeal is not frivolous, although she argues that it will fail. Nor is she concerned that the appellant will not surrender himself into custody in accordance with an order. On the evidence before me, I too am satisfied that the appellant has established the first two of the three criteria he must meet.
The Public Interest
[18] The issue on this application is whether the appellant's detention is necessary in the public interest.
[19] The meaning of the "public interest" in the context of s. 679(3) of the Code was considered by McEachern C.J.B.C (as he then was) in R. v. Nguyen (1997), 119 C.C.C. (3d) 269 (B.C.C.A. (chambers)) and by Ryan J.A. in R. v. Mapara (2001), 158 C.C.C. (3d) 312 (B.C.C.A.).
[20] In Nguyen, the applicant for release had been convicted of second degree murder, while in Mapara the conviction was for first degree murder. In both cases, the point was made that Parliament has provided for the release of all offenders pending appeal, including convicted murderers. In this context, McEachern C.J.B.C. discussed the purpose for bail pending appeal in Nguyen (at para. 16):
Considering bail applications with the public in mind can mean different things in different contexts. In some cases, it may require concern for further offences. In other cases, it may refer more particularly to public respect for the administration of justice. It is clear, however, that the denial of bail is not a means of punishment. Bail is distinct from the sentence imposed for the offence and it is necessary to recognize its different purpose which, in the context of this case, is largely to ensure that convicted persons will not serve sentences for convictions not properly entered against them.
[Underlining added.]
[21] In Mapara, Ryan J.A. echoed McEachern C.J.B.C.'s statement of the purpose of bail (at para. 34):
Public confidence in the administration of justice requires that verdicts, properly rendered, be enforced. Where an appellant establishes that he or she does not pose a flight risk and is unlikely to reoffend, the public interest also acknowledges that actual punishment for a crime be avoided if strong grounds exist for setting aside the verdict.
[22] She summarized the principle underlying the analysis of the public interest as the balance between enforceability and reviewability, stating (at para. 35) that "[v]ery strong grounds will tip the scale in favour of reviewability" and (at para. 36):
Depending on the demonstrated strength of the grounds, other factors, such as the circumstances of the offence - for example, premeditated violence - and inordinate delay will be matters to weigh in the balance. The essential question, however, will be whether the appellant has been able to establish that enforceability is outweighed by reviewability.
[23] In the case of first degree murder, as in Mapara, premeditation is a condition for the conviction. That is not the case where, as in this case and Nguyen, the conviction is for second degree murder. The degrees of premeditation and violence are relevant. McEachern C.J.B.C. made this point in Nguyen (at paras. 22-3):
Moreover, as a great many offences involve some violence, the fact that there is violence cannot of itself be conclusive against release as there would otherwise be very few cases where a detention order should not be made. An important consideration is whether the violence occurred in circumstances of malevolent rather than foolish or spontaneous intent. It is important to consider whether the applicant is a person prone to violence or cruelty or whether she or he became caught up in circumstances where awful things sometimes happen. Without stating any rule which can be applied to every case, it is my view that detention pending appeal will not always be necessary for young men or women fighting on a Saturday night, even though awful consequences sometimes result.
On the other hand, where the offence appears to have been committed with wanton, deliberate or cruel violence, particularly against vulnerable victims such as children or aged persons, or by persons with substantial criminal records or by persons already on bail or parole for similar offences, then the public may well lose respect for the administration of justice if detention is not continued after conviction.
[Underlining added.]
Disposition of this Application
[24] In addition to the material filed on this application, I have reviewed the transcripts of the statements made by Mrs. Couture to the police, the evidence on the voir dire of the other witnesses referred to by the trial judge in the portion of her reasons for her voir dire ruling to which the appellant takes objection and the submissions on sentencing. From my review of the evidence and the principles relevant in considering the public interest on an application for release pending appeal, I have concluded the appellant has not established that his detention is not necessary in the public interest.
[25] I have considered the following factors in reaching this conclusion:
(a) On an application by a convicted offender for release pending appeal, the presumption of innocence does not apply as it does when bail is granted pending the trial (see R. v. Demyen (1975), 26 C.C.C. (2d) 324 at 326 (Sask. C.A.), quoted in Mapara at para. 25). Thus, the fact that the appellant was released pending his trial and apparently complied with the strict conditions imposed on him carries little weight in determining whether the confidence of the public in the administration of justice would be affected by his release pending appeal.
(b) There were two murders. Their circumstances suggest violence that occurred in "circumstances of malevolent rather than foolish or spontaneous intent" (Nguyen at para. 22). The evidence indicated that the appellant was prone to violence. His girlfriend was vulnerable within the abusive relationship. Her friend was murdered to hide the girlfriend's murder.
(c) The trial judge expressed reservations about the appellant's rehabilitation and anger management. The evidence indicates that prior to and at the time Mrs. Couture made her statement to police, she had been subject to abuse by the appellant and their relationship was unstable. While the supporting letters filed on behalf of the appellant at his sentencing indicate that they now have a stable and loving relationship, I am not persuaded that conditions requiring that Mrs. Couture act as the appellant's "jailer" are appropriate.
(d) I am of the view that the appellant's appeal is arguable, but does not meet the standard of "very strong grounds" suggested in Mapara.
[26] For the above reasons, I dismiss the application for release pending appeal.
"The Honourable Madam Justice Levine"
Corrigendum: April 20, 2004
There is a Ban on Publication of the identity of any victim or witness pursuant to section 486(4.1) C.C.C.
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 176 | R. v. Mark | 2004-03-17T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0176.htm | 2026-01-18T10:22:45.061000 |
2004 BCCA 176 R. v. Mark
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Mark,
2004 BCCA 176
Date: 20040317
Docket: CA029522; CA029510
Docket: CA029522
Between:
Regina
Respondent
And
Kelvin William Mark and Landmark Fishing Ltd.
Appellant
- and -
Docket: CA029510
Between:
Regina
Appellant
And
Kelvin William Mark and Landmark Fishing Ltd.
Respondent
Before:
The Honourable Chief Justice Finch
The Honourable Madam Justice Huddart
The Honourable Madam Justice Saunders
Oral Reasons for Judgment
D.R. Kier, Q.C.
Counsel for the Crown
C. Harvey, Q.C.
Counsel for K.W. Mark and Landmark Fishing Ltd.
Place and Date:
Vancouver, British Columbia
17 March 2004
[1] FINCH, C.J.B.C.: The Crown appeals the order of the B.C. Supreme Court, sitting as a summary conviction appeal court, pronounced 6 February 2002 directing that acquittals be entered on six counts of unlawful fishing during a closed time contrary to s. 30 of the Pacific Fisheries Regulations, 1993, S.O.R./93-54, and in breach of s. 78 of the Canada Fisheries Act, R.S.C. 1985, c. F-14. Both respondents were convicted on those charges at a trial in Provincial Court in Prince Rupert, following 11 days of hearing held, sporadically, from 1998 to 2000, with convictions pronounced on 19 April 2000.
[2] The offences were alleged to have occurred from 14 to 18 March 1997 at various times and locations, at or near McIntyre Bay at the north end of the Queen Charlotte Islands. The Regional Director General of Fisheries made a variation order on 25 February 1997, in force until 31 March 1997, which in general terms opened certain areas, listed and described in a schedule attached to the order, to fishing at depths below 40 fathoms. Interpretation of the variation order was a matter in issue, one view being that fishing was permitted on the seaward side of a charted boundary line, purporting to mark the 40 fathom contour line; another view being that the water depth at the location where a vessel fished was to be determined by the vessel's electronic equipment.
[3] At trial, the defence raised other issues. The defence argued:
(1) that the variation order was beyond the statutory authority of the Director General and was therefore invalid;
(2) that the order was so vague as to be unenforceable;
(3) that notice of the order was not given by any of the means set out in the Regulations; and
(4) that the Crown failed to prove that the respondents fished above the 40 fathom level.
[4] The learned Provincial Court judge held (on 13 May 1999) that although the definition of the opened area was "somewhat vague" the order was nevertheless valid, and a trial on the facts was necessary.
[5] The Crown's case included the evidence of Mr. Wallden, an observer assigned to accompany the respondents' vessel (the "Steadfast"), proof of the vessel's log, and the evidence of other fishers in the area. The respondent Mark testified for the defence, and other defence evidence was called. An important Crown witness was Captain Paulson, who testified as an expert navigator. Using the vessel's log as to the coordinates at which the respondents fished, he plotted those locations on a chart, and then went to those locations and took depth soundings. It appears the learned trial judge relied on Captain Paulson's evidence to found the convictions.
[6] There was also evidence as to the manner in which the Steadfast's log was kept, the accuracy and reliability of the vessel's electronic locating system (Loran C), the accuracy of global positioning systems ("GPS") used by Captain Paulson, the possible differentials between those two systems, and the reliability and accuracy of the depth sounding equipment on the Steadfast (which was lost at sea sometime after the events giving rise to these charges).
[7] The learned trial judge accepted Captain Paulson's evidence as to the depths at which the respondents fished, and found that it was at levels above 40 fathoms. She said:
I am satisfied that for all the other counts then, after dismissing counts 9 and 10, that the depth as reported by Captain Paulson is accurate, and even giving a general allowance for depth sounders and change of tide with the Steadfast, was within the closed area at all relevant times for the balance of the counts.
and further:
Now, I also decline defence's argument with regard to whether or not Captain Paulson was really finding the depth at the location where Mr. Mark was, given the different manners in which he would relocate on at sea. And there was a lot of discussion about Loran, global positioning systems, and the differential global positioning system. In all of this, I felt rather like I was watching the old shell game, that if the pieces were moved fast enough, somehow I would lose track of what the essential point was and I hope I didn't do that. I find that I am satisfied that Captain Paulson with his equipment and his knowledge and expertise was as close as is possible to get to the locations where Mr. Mark was and that his evidence of the depths there satisfies me.
[8] On appeal to the summary conviction appeal court, the respondents raised three grounds. They maintained
(1) the verdict was unreasonable, as there was no evidence of essential matters;
(2) the variation order was invalid as beyond the authority of the Regional Director General, and that in any event the order was vague; and
(3) the argument that failure to give notice of the order as required by the Regulations was fatal to the Crown's case.
[9] The learned summary conviction appeal judge dealt only with the issue of whether the verdict was reasonable. He reviewed the evidence as to the use and accuracy of the Loran C system, and the GPS. He reviewed Captain Paulson's evidence. He concluded that Captain Paulson's opinion did not take important facts into account:
[18] It is clear from Captain Paulson's evidence that if one uses co-ordinates taken on the Loran C system and plots them on a chart and attempts to return to those positions using a GPS system, one will not be able to return to exactly the same location unless one knows the amount of error or distortion in the Loran C. In this instance, Captain Paulson did not know that the co-ordinates were taken on the Loran C.
[10] He concluded that Captain Paulson's evidence was insufficient to support the convictions:
[22] Although Captain Paulson's evidence was accepted by the trial judge, and no doubt accurate, he could well have been at a different location than Captain Mark was when he was fishing. Captain Paulson may well have been able to make an adjustment and find the exact location where Captain Mark was fishing had he known that the co-ordinates were taken off a Loran C system. But in the absence of any evidence, it is impossible to say exactly where the appellant was fishing and what the depth was at that location.
and further:
[24] I too accept the evidence of Captain Paulson. However, his evidence did not deal with an essential issue. The trial judge made no factual finding regarding the discrepancies in the Loran C system. In the absence of any evidence as to how much distortion the Loran C causes at sea, it is impossible to know where exactly the appellant was fishing and what the depths were at those locations. Had Captain Paulson realized that the co-ordinates were taken on a Loran C system, he may well have been able to plot the correct locations at which the appellant was fishing.
[25] Because there was no evidence on an essential element, I must allow the appeal and direct an acquittal.
[11] He also concluded that though the respondents should be acquitted, it was proper to make an order pursuant to s. 72(3) of the Fisheries Act forfeiting the catch.
[12] Both the Crown and the accused appeal to this Court.
[13] The Crown contends that the summary conviction appeal judge erred in substituting his view of the evidence for that of the trial judge, misconstrued the evidence as to the extent of variations between locations determined by Loran C and GPS systems, and applied the wrong legal test on a summary conviction appeal.
[14] The respondents submit that no reversible error has been shown on the part of the summary conviction appeal judge. In the alternative, the respondents rely on the other defences advanced in the court below, and not decided by the summary conviction appeal judge.
[15] Under s. 839 of the Criminal Code an appeal lies to this Court from a summary conviction appeal court on a question of law alone. In my opinion, the only legal issue raised by the Crown is whether the summary conviction appeal judge applied the wrong legal test on review of the conviction in Provincial Court.
[16] The test for application by the summary conviction appeal judge was whether the verdict was unreasonable or unsupported by the evidence. The test is "whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered". That would require the summary conviction appeal judge to examine whether the Crown had made out the essential elements of the offences alleged. In determining whether a verdict is unreasonable, the appellate court must to some extent reconsider and reweigh the evidence: see R. v. Biniaris, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193 at 36-37, 42 and R. v. Yebes, [1987] 2 S.C.R. 168 at 85-86, 43 D.L.R. (4th) 424.
[17] In my view, the learned summary conviction appeal judge correctly stated this test as the first ground of appeal. The question then is whether he properly applied that test. In my opinion he did. In order to prove its case on each of the six counts on which convictions were entered, the Crown had to prove that the respondents fished at locations where the depth was less than 40 fathoms. The only evidence of the vessel's positions were the coordinates recorded in the log books of the Steadfast. Those entries were based on readings taken from Loran C equipment, uncorrected or unadjusted. The depths at those locations cannot be determined by ascertaining the depth at locations determined by GPS equipment according to the same readings. There was no evidence that a recorded position based on uncorrected Loran C data can be located using GPS. Without evidence of Loran C error, or the correction required to correspond to a GPS location, there was no evidence as to the location of the Steadfast while fishing, and consequently no evidence as to depth at those locations.
[18] The Crown argued that, according to Captain Paulson's evidence, the differences between positions located by the two systems were "minute". However, as noted by the summary conviction appeal judge, the Provincial Court judge made no express finding of fact as to the discrepancies between the two systems. She gave no basis for concluding that the locations at which Captain Paulson took the depth measurements were the same locations at which the fishing occurred, despite Captain Paulson's testimony that he was unaware that the co-ordinates were taken on the Loran C and that such measures could not be used to duplicate the ship's positions using GPS. In addition, it is unclear exactly what discrepancy Captain Paulson described as being "minute". He later testified that the measures obtained from corrected Loran C and GPS equipment aboard the Arrowpost were relatively accurate. However, in light of his other testimony, this could not be taken as a general statement comparing measures taken from the uncorrected Loran C aboard the Steadfast and those taken from GPS. Accordingly, in my view, the summary conviction appeal judge correctly concluded that the Crown had failed to prove an essential element of the offences alleged, namely the vessel's location when fishing and the depth at those locations.
[19] In my view therefore, the summary conviction appeal judge used the correct legal test, and he did not err in its application to this case. It follows that he did not err in allowing the respondents' appeals against conviction.
[20] I would dismiss the Crown's appeal against these acquittals on this basis. Accordingly, I do not think it necessary to address the respondents' other arguments concerning alleged flaws in the Regional Director General's variation order opening the fishing area, or the failure to provide notice of that order.
[21] The respondents have launched a separate appeal (CA029522) against the penalty imposed by the summary conviction appeal judge. Even though he entered acquittals, the judge ordered the respondents' catch to be forfeited under s. 72(3) of the Fisheries Act. The respondents contend that the summary conviction appeal judge did not hear submissions on his jurisdiction to make such an order, that such an order could not lawfully have been made, and that the order was made without notice of the judge's intention to do so.
[22] Initially, the Crown took the position that it was not able to respond to this argument, as the respondents' factum appealing sentence was filed only on 16 February 2004. However, the Crown has now conceded that the summary conviction appeal judge misapplied s. 72(3) of the Fisheries Act and that the forfeiture order therefore cannot stand if the acquittals are upheld.
[23] As I would dismiss the Crown's appeal from the acquittals, it follows that I would allow the respondents' appeal from the forfeiture order.
[24] HUDDART, J.A.: I agree.
[25] SAUNDERS, J.A.: I agree.
[26] FINCH, C.J.B.C.: The appeal is dismissed. The respondents' appeal from forfeiture is allowed.
"The Honourable Chief Justice Finch"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 172 | Houweling Nurseries Ltd. v. Houweling | 2004-03-16T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0172.htm | 2026-01-18T10:22:58.398000 |
2004 BCCA 172 Houweling Nurseries Ltd. v. Houweling
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Houweling Nurseries Ltd. v. Houweling,
2004 BCCA 172
Date: 20040316
Docket: CA029616
Between:
Houweling Nurseries Ltd., NHL Bradner Nurseries Ltd.,
and Houweling Nurseries Oxnard Inc.
Plaintiffs
(Respondents)
And
Abraham Paulus Houweling aka Paul Houweling
Defendant
(Appellant)
And
Douglas Graham and Glen Harry
Third Parties
(Respondents)
And
Grant Thornton LLP
Plaintiff
(Respondent)
And
Amethyst Greenhouses Ltd., Amethyst Farms Ltd.
and Paul Houweling
Defendants
(Appellants)
Before:
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Low
Oral Reasons for Judgment
Paul Houweling appearing in person for the Appellants
D.B. Wende
Counsel for the Respondents
D. Graham, G. Harry and G. Thornton LLP
Place and Date:
Vancouver, British Columbia
16 March 2004
[1] HALL, J.A.: The appellants appeal from an order made by Mr. Justice Catliff on March 6, 2002 and entered March 19, 2002 ordering the appellant, Amethyst Farms Ltd., to pay accounting invoices rendered by the respondent, Grant Thornton LLP.
[2] The background is that Grant Thornton, an accounting firm, and members of the firm including Mr. Graham and Mr. Harry, had been retained by the appellants to do certain accounting work relative to matters relating to what is sometimes called the de-merger of the Houweling group of companies of which Mr. Paul Houweling was a member. Those events relating to the break-up of the organization and the separation of the business as occurred in or around 1997. The events that underlie this lawsuit and relate to the retainer entered into between the appellants and the accounting firm respondent occurred in approximately 1999.
[3] In his judgment, Mr. Justice Catliff dealt with two matters. One was the claim by the plaintiff in the proceedings, Grant Thornton LLP against the defendants-appellants. Their claim was in debt for accounts that they had rendered to the company for professional services. The other subject that Mr. Justice Catliff dealt with was a counter-claim that had been filed against the accounting firm and two principals of the firm, Mr. Graham and Mr. Harry.
[4] The core reasoning of his Lordship is found at paras. 7 and 11 relating to the counter-claims where he said this:
[7] There is nothing to substantiate or to detail any claim against Grant Thornton in the counterclaim or third-party notice. The claims against the other defendants by counterclaim have previously been dealt with in this court. Having heard what I have heard in the last hour and a half or so, it seems to me plain that the claims against Doug Graham, who I think is the actual defendant by counterclaim in action C990235, must be dismissed for reasons similar to those expressed in this court when the claims against other defendants by counterclaim were dismissed.
. . .
[11] It seems to me that under both Rule 18 and Rule 18A, I must grant judgment to the plaintiff as requested, together with interest as set out in the draft order. Glenn Harry, I see is also noted as a defendant, and I dismiss the counterclaim too, and the third-party notice regarding him.
[5] With respect to the claim advanced by the plaintiff-respondent, Grant Thornton LLP, his Lordship concluded as follows at para. 10.
[10] However, nothing that he has said, certainly no material that has been filed as far as I've been able to see today has demonstrated any meritorious defence to the claim by the accounting firm for their fees for services rendered. They seem to have done their very best to advise Mr. Houweling on the matters that they were retained to advise him, as set out in their retainer letters.
[6] The effect of the judgment given by Mr. Catliff on March 6, 2002 was that he granted judgment to the plaintiff, respondent in this Court, Grant Thornton LLP, for the amounts sought in their accounts that they had rendered and that they were claiming for against the defendants, appellants in this Court. With respect to the counter-claims that were advanced by the appellants he disposed of those by finding that there was no basis advanced that would underpin the validity of those counter-claims and he dismissed them all.
[7] We have today heard argument from Mr. Houweling with respect to many matters, including a considerable amount of background about the underlying transactions that relate to this matter. It appears to me that nothing has been demonstrated here today that could lead us to conclude that there was any palpable or overriding error in any of the conclusions or orders of Mr. Justice Catliff. It seems to me that in those circumstances the proper order is that the appeal of the appellants ought to stand dismissed. The rule normally is that costs would follow the event and so costs should follow the event.
[8] The relief sought in the factum of the respondent included the affirmation of the judgment, which is the same as the dismissal of the appeal, and directing that certain monies that had been paid into court by the appellants as security for costs be paid out following assessment of the respondent Grant Thornton's Supreme Court and Court of Appeal bills of costs in this way: firstly that the amount found due and owing would be paid to Grant Thornton LLP from that sum, and the balance, if any, paid to the appellant Mr. Paul Houweling. It seems to me that that order is an appropriate one and it is one that should go.
[9] The only other matter that I think would be appropriate would be that in the circumstances of this case, it is appropriate that any approval Mr. Houweling or a representative of Amethyst as to reform of any orders required in connection with the appeal by could be dispensed with. A copy of any entered order should be sent in due course to Mr. Houweling and Amethyst.
[10] It appears to me this that deals with all of the matters that are before us on this appeal and I would therefore make orders in the terms that I have set forth above.
[11] DONALD, J.A.: I agree.
[12] LOW, J.A.: I agree.
[13] DONALD, J.A.: The appeal is dismissed and there will be an order in the terms indicated by Mr. Justice Hall.
"The Honourable Mr. Justice Hall"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 174 | Nelson v. Hoops L.P. | 2004-03-19T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0174.htm | 2026-01-18T10:22:31.442000 |
2004 BCCA 174 Nelson v. Hoops L.P.
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Nelson v. Hoops L.P.,
2004 BCCA 174
Date: 20040319
Docket: CA030620
Between:
David G. Nelson
Appellant
(Respondent on Cross Appeal)
(Plaintiff)
And
Hoops L.P., a Limited Partnership and
Michael Heisley
Respondents
(Appellant on Cross Appeal)
(Defendants)
Before:
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Low
Oral Reasons for Judgment
H.F. Tomyn
Counsel for the Appellant
D.W. Buchanan, Q.C. and
J. Hodes
Counsel for the Respondents
Place and Date:
Vancouver, British Columbia
19 March 2004
[1] LOW, J.A.: This is an appeal from an order of Mr. Justice Groberman dismissing the application of the plaintiff/appellant for an order certifying the action as a class proceeding under the Class Proceedings Act, R.S.B.C. 1996, c. 50. The first issue is whether the chambers judge misunderstood the appellant's argument and thereby erred in finding that the amended statement of claim filed in the action disclosed no cause of action for breach of contract. The second issue is whether a class proceeding is the preferable procedure for the fair and efficient resolution of certain common issues identified by the chambers judge pursuant to s. 4(1)(d) of the statute.
[2] The defendants/respondents filed a cross appeal seeking reversal of the finding of the chambers judge that the statement of claim discloses a cause of action for fraudulent misrepresentation. For reasons that will become apparent the cross appeal should be dismissed.
[3] The respondent Hoops L.P. owns the Grizzlies professional basketball team that holds a franchise in the National Basketball Association and competes in that league. Michael Heisley is the sole general partner in Hoops L.P. through a corporate vehicle. For convenience, I will refer to Mr. Heisley as the owner of the team and the franchise.
[4] The Grizzlies franchise operated in Vancouver, B.C. since before the 1995-96 N.B.A. season. Mr. Heisley bought the team in May 2000. The appellant had been a season ticket holder since the team began to compete in the league. In August 2000 he bought two season tickets from Hoops L.P. He pleads that the contract of purchase of the tickets included express or implied terms that he had the right to purchase season tickets for the same seats from year to year after the 2000-01 season as well as the right to upgrade his tickets to better seats as the same became available. He pleads that Hoops L.P. contracted to keep the Grizzlies in Vancouver in subsequent seasons so he could purchase season tickets in those seasons and so he could upgrade his seats. The cost of the two season tickets was $8,880.36.
[5] The appellant further pleads that before he purchased the season tickets Mr. Heisley made public statements on behalf of Hoops L.P. and in his personal capacity that they would "do everything they could to keep the Grizzlies in Vancouver"; that they would keep the team here beyond the 2000-01 season; and that they would not move the team out of Vancouver without seeing if the fans and the corporate community would support a winning team that the respondents were committed to build. Reliance on these representations is pleaded as an inducement of the appellant to purchase the season tickets from Hoops L.P.
[6] The appellant pleads that the representations made by Mr. Heisley were "false, inaccurate or misleading" because the respondents were always seeking to move the team for the 2001-02 season, that the respondents were not committed to making the franchise a success in Vancouver and that they did not take reasonable steps to that end. There is also a pleading that the representations were made with knowledge of their falsity or with recklessness as to their truth. There is a further pleading that when the respondents were marketing season tickets in 2000 they were planning to move the team to another city. The appellant pleads that he would not have purchased his season tickets for the upcoming season had he known that plans were afoot to move the team. He claims damages for breach of contract, including punitive damages.
[7] In the prayer for relief, the appellant seeks damages for breach of contract, negligent misrepresentation and fraudulent misrepresentation. The chambers judge found that there was no cause of action shown for negligent misrepresentation and I do not understand that finding to be questioned on appeal. The chambers judge found no support for the breach of contract pleading. However, he determined that there was an arguable basis for the claim for damages for fraudulent misrepresentation. That finding is the subject of the cross appeal.
[8] The order made by the chambers judge simply dismisses the certification application.
[9] The facts are easily stated. Mr. Heisley announced in January 2000 his intention to buy the team. The appellant places heavy reliance on what he said publicly at that time. The chambers judge summarized the preceding events and Mr. Heisley's statements as follows:
[4] The team was also not a financial success while it was in Vancouver. By the 1999 - 2000 season, the then owner of the Grizzlies, Orca Bay Sports and Entertainment controlled by John McCaw of Seattle, was interested in selling the team. Bill Laurie, an American businessman, sought to purchase it with the express intention of moving it to St. Louis. In January 2000, the NBA refused to approve Laurie's purchase of the team on the ground that he intended to move the team from Vancouver.
[5] Shortly thereafter, on January 24th, 2000, Michael Heisley had a press conference in Vancouver announcing that he would be purchasing the Grizzlies. He made a number of statements indicating that he was committed to Vancouver and to building a winning team here. The cumulative effect of various statements made by Mr. Heisley at that time was to assure the public that he did not have an intention to move the team from Vancouver. Mr. Heisley's proposal to purchase the franchise was approved by the NBA on April 11th, 2000, and the defendant limited partnership completed the purchase of the franchise one month latter.
[10] Before and after Mr. Heisley purchased the team there was a lot of public discussion about whether the franchise would remain in Vancouver. Of significance is an article in the Vancouver Province newspaper on 16 April 2000 in which Mr. Heisley was quoted as stating that, although he wanted to make the franchise work here, there were no stipulations as to franchise relocation when he bought the team from Mr. McCaw, that he made no commitment to the N.B.A. and was under no restrictions from the league and that "there was no discussion as to how long I would keep the team here or not keep the team here". Mr. Heisley made statements on other occasions in a similar vein. I question whether a reasonable person interested in the future of the Grizzlies could reach any conclusion other than that there was considerable uncertainty as to how long the team would remain in this city. It is important to note that all the statements by Mr. Heisley the parties rely on were made prior to the commencement of the sale of season tickets in June 2000.
[11] The appellant commenced the action on 21 February 2001, a couple of weeks after it became public knowledge that the team would be moved to Memphis, Tennessee.
[12] The chambers judge emphasized the appellant's assertion in pleadings, affidavit evidence and argument that it was an implied term of the contract that he would have the opportunity to purchase tickets for his seats or upgrades of them for the 2001-02 season. The judge found no breach of contract in this regard because the respondents did nothing illegal in moving the team and there could therefore be no breach of such an implied term. On appeal, the appellant says that this future contractual right, if a right it was, was only a factor in his decision to purchase the season tickets and he does not place great reliance on it. He says the judge overemphasized this point and lost sight of the assertion that he would not have bought the tickets in the first place if he had known that the respondents planned to move the team when he made the purchase in August 2000.
[13] I agree with the conclusions reached by the chambers judge as to the future rights aspect of the contract. The contract was for tickets for 41 home games of the Grizzlies and implying the term asserted by the appellant was not necessary to give effect to the contract or to give it business efficacy.
[14] As to the appellant's assertion that he was induced by a falsity to enter into a contract he would have avoided had he known the truth, it seems to me that is a matter that turns on whether there was a fraudulent misrepresentation. The judge was alive to that issue when he made these comments:
[11] Aside from one theory of liability, which I will allude to in a moment, the plaintiff's case relies on the idea that Mr. Heisley's statements on January 24th, 2000, were false and that they induced the plaintiff to purchase season-tickets.
. . .
[16] The plaintiff's real theory of liability is that a negligent or fraudulent misstatement of Mr. Heisley's intentions on January 24th, 2000 induced the plaintiff to enter into a contract to purchase season-tickets. He claims that he would not have purchased the tickets had the misrepresentation not been made. The plaintiff says that the misrepresentation, in effect, was that Mr. Heisley intended to keep the team in Vancouver, at least through the 2001 - 2002 season and indeed beyond.
[15] Later he commented on the fraudulent misrepresentation aspect of the case:
[19] The defendants suggest that an action in fraudulent misrepresentation cannot be made out because the misrepresentation was as to a future state of affairs, rather than as to an existing fact. I do not agree. Mr. Heisley's actual intentions on January 24th, 2000 are said to have been misrepresented. That is a misrepresentation of an existing fact.
. . .
[25] In the result, while far from being a slam dunk, I accept the plaintiff may have a cause of action based on the notion that he was induced to buy tickets on the basis of a false representation that the team would remain in Vancouver the following year. The first requirement of s. 4(1) of the Class Proceedings Act is therefore met.
[16] The appellant's argument before us, although it might not have been framed quite this way, is that the chambers judge erred by not finding an arguable claim for breach of contract arising out of an implied contractual term in the representations made by Mr. Heisley. The argument seems to be that in addition to being fraudulent, the representations amounted to a contractual obligation on the respondents to keep the team in Vancouver beyond the 2000-01 season.
[17] I cannot find that the chambers judge dealt with this point in his reasons. Perhaps that is not surprising because, having read and reread the amended statement of claim, I am unable to see how it arises in the pleadings. In any event, the appellant has shown no basis in argument for implying such a term in the contract. The contract was for tickets for 41 games during one basketball season. We have been directed to nothing in the contract documents that committed the respondents to remain in business in Vancouver beyond the end of the season. I think it would stretch contract law beyond reason to imply a contractual term from the representations of Mr. Heisley that the appellant relies upon.
[18] I find no error in the decision of the chambers judge that breach of contract is not a cause of action available to the appellant.
[19] The question then becomes whether the chambers judge erred in not certifying the action as a class proceeding with respect to the remaining cause of action, fraudulent misrepresentation. In my opinion, he did not.
[20] The chambers judge gave three reasons for finding that converting this action to a class proceeding would not be conducive to the fair and efficient resolution of the common issues he identified and to which neither party takes exception. He described the three reasons as follows:
[32] First, the circumstances of the various class members are sufficiently diverse that it is unlikely that more than a small number of them share a cause of action. Only those who heard, and more importantly believed, Mr. Heisley's representations on January 24th, 2000, and continued to believe and rely on them in purchasing season-tickets would have a cause of action. Further, in order to have a cause of action, such persons must have suffered damages. In other words, they must have been convinced that it was worth purchasing season-tickets for 2000 - 2001 because of the value of the right to renew their tickets for the following season.
. . .
[40] My second reason for refusing certification is that in my view, the individual issues in this case overwhelm the common issues. The question of each individual's motivations for buying tickets, their knowledge of Mr. Heisley's statements (both the rather rosy ones of January 24th, 2000, and the significantly less categorical ones in the months that followed), and their reliance on those statements are all crucial issues that will demand significant evidence to resolve. In my view, a decision on the common issues will do very little to advance the litigation.
. . .
[42] Finally, to my mind, there is the question of the utility of having the claims of the entire class adjudicated at all. As I have indicated, the damages suffered by class members, if they exist at all, must be exceedingly small in terms of compensatory damages. While I acknowledge that one goal of class proceedings is to permit the advancement of small claims where legal costs make it uneconomic to advance them in individual cases, I do not believe that this rationale extends to providing a procedure for claims that are so small they are not worthy of adjudication before the Court.
[21] The evidence supported these conclusions and I am not persuaded that there is any basis on which this court could interfere with the exercise of discretion by the chambers judge on the ultimate issue. The appellant has not shown that the judge misdirected himself, acted on wrong principles or irrelevant considerations, failed to give sufficient weight to relevant considerations, or was clearly wrong. To the contrary, I think he was correct.
[22] I would dismiss the appeal.
[23] As I noted above, the order appealed from simply dismissed the application for certification. The cross appeal is not from the order but from the reasoning of the chambers judge leading to the order and therefore we cannot properly entertain it. In any event, counsel for the respondents stated that if the appeal is dismissed we should also dismiss the cross appeal. Accordingly, I would dismiss the cross appeal.
[24] DONALD, J.A.: I agree.
[25] HALL, J.A.: I agree.
[26] DONALD, J.A.: The appeal is dismissed and the cross appeal as well.
"The Honourable Mr. Justice Low"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 173 | R. v. Ly | 2004-03-24T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0173.htm | 2026-01-18T10:22:08.490000 |
2004 BCCA 173 R. v. Ly
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Ly,
2004 BCCA 173
Date: 20040324
Docket: CA031079; CA031080
Docket: CA031079
Between:
Regina
Appellant
And
Malayvanh Ly
Respondent
- and -
Docket: CA031080
Between:
Regina
Appellant
And
Quoc Tang Ly
Respondent
Before:
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Low
P.W. Hogg
Counsel for the Appellant
J.A. Miner
Counsel for the Respondent
Malayvanh Ly
G.J. Dykstra
Counsel for the Respondent
Quoc Tang Ly
Place and Date of Hearing:
Vancouver, British Columbia
15 March 2004
Place and Date of Judgment:
Vancouver, British Columbia
24 March 2004
Written Reasons to follow by:
The Honourable Mr. Justice Hall
Concurred in by:
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Low
Reasons for Judgment of the Honourable Mr. Justice Hall:
[1] This is an appeal by the Crown from an order of a judge staying proceedings in a drug case. The order was made 29 July 2003. At the hearing of the appeal on 15 March 2004, we ordered that the appeal be allowed with reasons to follow. These are the reasons.
[2] On 2 March 2001 the two respondents were arrested and charged with production of marihuana and possession of marihuana for the purpose of trafficking. On 23 January 2002, following a preliminary inquiry, the respondents were committed to stand trial on these charges. After the adjournment of two previous dates set for the trial, a trial date of 28 July 2003 was scheduled and jury selection in this trial proceeded on 7 July 2003. On 17 July 2003 counsel for the respondents brought an application in Supreme Court before a chambers judge (not the trial judge) seeking a judicial stay of proceedings on two bases, firstly, that there had been undue delay in the proceedings and secondly, that the Crown had failed to provide the name and address of an informant witness necessary to the defence.
[3] The case initially arose out of information provided to a police officer concerning premises located at 28410 Starr Road, Abbotsford, British Columbia. This information came to the police in May of 2000. On 27 February 2001 Constable Dhillon of the Abbotsford Police Department obtained a search warrant to search the premises at Starr Road. As a result of that search evidence was discovered of a grow operation that underpinned the charges facing the respondents. In the Information to Obtain the Warrant, the constable narrated that the information provided by the informant was to the effect that prior to 1999 there had been a mushroom farm operation at the Starr Road premises. Thereafter, the farm operation appeared to shut down. Apparently there were financial difficulties with the operation making a profit. Thereafter, new tenants or owners had taken over the premises. The Information went on to recite facts provided by the informant that were indicative of a possible marihuana grow operation at the Starr Road premises. That information was buttressed by some further information that the respondents had been linked to a company that owned property in the Langley area where a marihuana grow operation had been discovered in the year 2000.
[4] When the applications for stays of proceedings came on before the chambers judge some 10 days before the date scheduled for trial, the main argument advanced centred on the delay issue. Only after that issue had been argued and dealt with did the court and counsel turn their attention to the application for a stay based on the alleged failure of the Crown to make available the "informant/witness". The chambers judge decided that the application for a judicial stay based on the delay argument was not well founded and he dismissed that aspect of the application. Thereafter, a fair amount of confusion reigned relating to the application concerning the informant.
[5] A significant reason why confusion reigned was that at no time, and indeed even to the time of the hearing of this appeal, was there ever a clear statement on the record of the facts of the case or the theory of the Crown. We remain as much in the dark about the facts of the case linking these respondents to the grow operation as were both the chambers judge and the trial judge. The informant had told the police that one group of individuals were on the premises prior to 1999 and thereafter, presumably when the grow operation came into existence, a different group of persons occupied the premises. Counsel for the respondents sought to assert before the chambers judge that because possibly the informant would be able to identify the individuals who were in possession after 1999, if those individuals were not the respondents, then somehow that would exonerate the respondents from guilt on the charges they faced. It was said that disclosure of information of identity suspected to be possessed by the informant concerning the accused would be requisite to the defence in order to establish their innocence. It was argued that it was vital to the defence that the usual rule prohibiting disclosure of the identity of an informant should not apply because significant information was possibly possessed by the informant. Counsel for both respondents asserted that the "innocence at stake" exception to the usual rule prohibiting disclosure of the identity of informants should be found to be engaged in this case.
[6] After a somewhat confusing colloquy between the chambers judge and counsel for the Crown, in which counsel for the Crown appeared to agree with a suggestion from the bench that if this informant could not identify the respondents as the persons occupying the premises post 1999, then somehow that result would exonerate them from guilt on the charges they faced. The chambers judge then made an order directing that the Crown should produce this informant to be examined by counsel for the respondents. It was apparently envisaged that this would occur in some type of in-camera proceeding wherein counsel for the respondents would be entitled to question the informant about his or her knowledge of the identity of those who were in possession of the premises at Starr Road at the relevant time.
[7] It appears to me, without an appreciation of the basis of the Crown case against the respondents, that it could not and cannot be determined if there was any relevance in the evidence about identity thought to be possessed by the informant. That being so, I find it difficult to understand how it might be thought the innocence at issue exception could here be demonstrated to exist. Of course, such a finding would be a prerequisite to making any order that could disclose the identity of an informer. Nonetheless, the order was made that the Crown was to produce the informant. Counsel were to be bound by an undertaking not to disclose the identity of the informant to their clients, the respondents. Perhaps this was conceived by the court as some sort of halfway house of disclosure. This procedure, in my view, was both novel and erroneous. I must observe that the chambers judge did not get much assistance from Crown counsel on this application; perhaps that occurred partly because the main focus of the application that day had been the delay argument.
[8] Whatever be the origins of the evidentiary rule of informer privilege from the 18th and early 19th century, and I am not sure that the present formulation of the rule is entirely congruent with those early origins which date back to a time anterior to the establishment of organized police forces, the modern rule, which has been extant for a long period of time, is well stated in the case of R. v. Leipert, [1997] 1 S.C.R. 281, 112 C.C.C. (3d) 385 at paras. 9 and 10:
A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same. As Cory J.A. (as he then was) stated in R. v. Hunter (1987), 57 C.R. (3d) 1 (Ont. C.A.), at pp. 5-6:
The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance of the importance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was also obvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or her own protection and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed.
The rule is of fundamental importance to the workings of a criminal justice system. As described in Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 105:
The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.
In R. v. Scott, [1990] 3 S.C.R. 979, at p. 994, Cory J. stressed the heightened importance of the rule in the context of drug investigations:
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. . . . The investigation often will be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of informers but also of the undercover police officers will depend on that relationship of trust.
[Emphasis added.]
[9] The rule about informer privilege is subject to only one exception, namely the necessity for this privilege to yield to the need to demonstrate the innocence of an accused person: Marks v. Beyfus (1890), 25 Q.B.D. 494, 17 Cox C.C. 196 (C.A.); R. v. Scott, [1990] 3 S.C.R. 979, 61 C.C.C. (3d) 300; Khela and Dhillon v. The Queen, [1995] 4 S.C.R. 201, 102 C.C.C. (3d) 1; Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957). It was that exception that counsel referred to in argument before the chambers judge as the basis for the application to obtain access to the informer in the instant case. In argument before us, in addition to referring to the above cases, counsel for the respondent Quoc Tang Ly also referred to an early English case before Cockburn C.J., R. v. Richardson, [1863] 176 E.R. 318, 3 F. & F. 693.
[10] As a general rule, the mere fact that a tip or information is received from a person is not usually sufficient to abrogate this privilege: Leipert, supra; United States v. House, 604 F.2d 1135 (8th Cir. 1979). As McLachlin J. (as she then was) observed in Leipert, circumstances may arise where the evidence at trial establishes a basis for an exception to the informer privilege rule. This could occur for instance where the informer was shown to be a material witness to the crime or if he or she had acted as an agent provocateur. There is no suggestion as I see it in the record of this case that any such circumstances existed here. As far as the rather sketchy facts of this case demonstrate, the informant here seems to have been simply an individual who provided the police with evidence of possible suspicious activity at the Starr Road premises. These circumstances here are very different from a situation such as that found in Khela and Dhillon, supra, wherein the informant had been much involved in the actual transactions underlying the charges in that case. A similar situation was found to exist in the case of Roviaro v. United States, supra.
[11] When the case came before the trial judge on 28 July 2003, the Crown had up to that time not produced the informant. It took the position before the trial judge that the informant ought not to be produced. Counsel for the respondents then applied before the trial judge for a judicial stay based on non-compliance with the order of the chambers judge, alleging that they were being denied their right to make full answer and defence to the charges by reason of this failure of the Crown to comply with the order. There was a somewhat rambling argument before the trial judge about whether the order of the chambers judge was well founded. The argument of the Crown generally was that it was not, but this argument was perhaps a bit on the umbrous side. The trial judge, substantially relying on the circumstance that the Crown had not, during the intervening 10 days, produced the informant for examination by counsel for the respondents, proceeded to order a judicial stay of proceedings. In argument before us, counsel for the Crown appellant asserts that the trial judge erred in ordering a stay. It is submitted that she fell into error by failing to undertake any analysis of whether or not the rights of these respondents to make full answer and defence had been breached. Counsel for the appellant submits that it was incumbent upon counsel for the respondents to produce some evidence to establish a basis to argue that the rights of their clients were being adversely affected, as they alleged. I consider that there is merit in these submissions made on behalf of the appellant.
[12] Counsel for the Crown before the trial judge resiled from the inexplicable admission made by counsel for the Crown before the chambers judge that a failure of the informant to identify the respondents at this proposed examination could result in the exoneration of the respondents on the charges they faced. Given the wholly incomplete state of the record concerning the nature of the case against these respondents, it is quite impossible to discern any support for this assertion. In my opinion, the trial judge, when faced with the stay application on 28 July 2003, ought to have required the respondents to establish a factual basis to justify their submission that their rights to make full answer and defence were being or had been infringed by the failure of the Crown to produce the informant for examination by counsel for the respondents. In my view it was incumbent on the trial judge to embark upon such an inquiry and analysis before making the order she did. The failure of the trial judge to so proceed amounted to an error in law. There was nothing before the trial judge that would have permitted her to find that there was a breach of the rights of the respondents as asserted by their counsel. As a result, the trial judge had no basis to conclude this was one of those "clearest of cases" requiring an order for a judicial stay of proceedings: see R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1. Because of this error, we allowed this appeal and ordered the matter to proceed in the trial court. Whether any basis can at some future time be established before the trial court that would permit the usual informer privilege to be abrogated remains at large. Certainly, on the state of the facts currently extant, no such basis has been established. As I noted, the record here is very incomplete concerning the facts of the case and the theory of guilt asserted by the Crown.
[13] I consider that much of the difficulty that arose in this case occurred because of the circumstance that this application relating to informer privilege was brought on before a chambers judge who was not the trial judge. While one hesitates to be unduly categorical and say that it could never be the situation that such an application could be properly brought on before a chambers judge or a pre-trial management judge as opposed to the trial judge, it seems to me that the circumstances where this would be an appropriate way to proceed would be extremely rare. The respondents, before the chambers judge and in this Court, appeared to suggest in argument that certain comments made in an earlier case from this Court involving an application for a judicial stay arising out of alleged delay, R. v. Fagan (1998), 59 C.R.R. (2d) 110, 115 B.C.A.C. 106, support the procedure adopted here. Those comments were made in the context of noting the extent to which possible applications should be brought on before trial to obviate the delay of and adjournment of trials. Of course, Fagan was a case where the argument at trial and on appeal centered around the issue of whether it was appropriate to order a stay based on the occurrence of unreasonable pre-trial delay.
[14] The case at bar concerns a different subject, informer privilege. In order for a court to deal with such an issue in an informed way, it seems to me that all of the salient facts would have to be before the trial judge in order for that judge to undertake a proper assessment of the issue. Prior to a full elucidation of the facts and issues at the trial, it seems to me that it would be a well nigh impossible task to ask any judge to enter upon the resolution of this sort of issue in pre-trial proceedings. The required factual material to enable a judge to decide on a delay issue might well be extant at a time prior to the trial. However, I believe it would be extremely difficult to envisage how a sufficiently full evidentiary picture could, before trial, be developed before a judge on the type of issue under discussion in this case. I note these comments of McLachlin J. in Leipert, supra at para. 33:
When an accused seeks disclosure of privileged informer information on the basis of the "innocence at stake" exception, the following procedure will apply. First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused's innocence. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence....
[15] As courts have consistently indicated, the informer privilege is a very important principle of law. This type of privilege will only be found to be abrogated in cases where the innocence at stake exception is demonstrated to exist. In order to make such a determination, the court will need to be fully apprised of all of the facts and circumstances of the individual case. That normally could only occur at a stage in the trial where the substantial body of trial evidence is before the court. At that point counsel and the court will be able to address the issue in an informed manner. As I have endeavoured to show above, in the circumstances of the present case there was no sufficient factual underpinning to allow this issue to be properly argued by counsel or considered by any judicial officer.
[16] In my opinion, the original order of the chambers judge was flawed because it was made without any proper factual basis. Likewise, the order for a judicial stay made by the trial judge was also flawed because she appears to have placed considerable reliance on the earlier order made by the chambers judge. The core error I have identified in the decision of the trial judge was her failure to conduct any independent analysis as to whether or not there was sufficient material before her to establish that the rights of the respondents to make full answer and defence had been infringed. Also, I do not consider that it had been demonstrated that this was a case in which the drastic remedy of a stay of proceedings was an appropriate order. Because no proper basis existed for the trial judge to order a judicial stay this Court ordered that this appeal should be allowed and the stay order set aside.
"The Honourable Mr. Justice Hall"
I Agree:
"The Honourable Mr. Justice Donald"
I Agree:
"The Honourable Mr. Justice Low"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 213 | R. v. Berg | 2004-04-13T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/02/2004bcca0213.htm | 2026-01-18T10:21:01.734000 |
2004 BCCA 213 R. v. Berg
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Berg,
2004 BCCA 213
Date: 20040413
Docket: CA031083
Between:
Regina
Respondent
And
Timothy Ralph Berg
Appellant
Before:
The Honourable Mr. Justice Lambert
The Honourable Madam Justice Ryan
The Honourable Mr. Justice Low
Oral Reasons for Judgment
S. Goldberg
Counsel for the Appellant
S.J. Brown
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
13 April 2004
[1] LAMBERT, J.A.: Mr. Goldberg has asked on behalf of his client that his client be permitted to be present in Court during the hearing of this appeal.
[2] In the exceptional circumstances of this case, and if arrangements can be made by the registrar with the sheriff's office, then we order that Mr. Berg be permitted to be present in Court during so much of the argument of this appeal as remains after he is able to be brought in but we do not propose to adjourn until he arrives. So, we will now go ahead on that basis and the registrar will try to get Mr. Berg here as quickly as possible.
[3] RYAN, J.A.: I agree.
[4] LOW, J.A.: I agree.
"The Honourable Mr. Justice Lambert"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 212 | R. v. Uppal | 2004-04-13T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/02/2004bcca0212.htm | 2026-01-18T10:20:58.986000 |
2004 BCCA 212 R. v. Uppal
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Uppal,
2004 BCCA 212
Date: 20040413
Docket: CA030954
Between:
Regina
Respondent
And
Gurvinder Singh Uppal
Appellant
Before:
The Honourable Mr. Justice Lambert
The Honourable Madam Justice Ryan
The Honourable Mr. Justice Low
Oral Reasons for Judgment
No one appearing for Appellant
S.J. Brown
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
13 April 2004
[1] LAMBERT, J.A.: This matter comes before the Court under Rule 13(3). It has been before the Court on several previous occasions. No response has ever been elicited from Mr. Uppal himself and no lawyer admits to being acting for him. The most recent address to which notice was given was obtained by Ms. Brown on behalf of the Crown from Mr. Uppal's probation officer.
[2] In those circumstances, I and my colleagues would dismiss the appeal as abandoned.
[3] RYAN, J.A.: I agree.
[4] LOW, J.A.: I agree.
"The Honourable Mr. Justice Lambert"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 171 | R. v. Grave | 2004-03-16T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/01/2004bcca0171.htm | 2026-01-18T10:22:48.628000 |
2004 BCCA 171 R. v. Grave
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Grave,
2004 BCCA 171
Date: 20040316
Docket: CA031506
Between:
Regina
Respondent
And
Bradley Lennon Grave
Appellant
Before:
The Honourable Chief Justice Finch
The Honourable Madam Justice Huddart
The Honourable Madam Justice Saunders
Oral Reasons for Judgment
Appellant appearing in person
S. Brown
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
16 March 2004
[1] FINCH, C.J.B.C.: This is an application for leave to appeal sentence and if leave is granted, an appeal from sentence imposed in the Provincial Court on 4 December 2003. The appellant pleaded guilty to two counts of breaking and entering and to one count of theft. He was sentenced to two years less a day incarceration on each of the counts of breaking and entering and 60 days incarceration on the theft count. All sentences were concurrent.
[2] The first offence for which sentence was imposed occurred on 13 June 2003 was the break and enter of a dwelling house. The appellant entered a guilty plea to that charge on 23 October 2003 and was released on bail pending sentence.
[3] The next offence, that is the theft, occurred on October 28, 2003. That was the theft of goods valued at approximately $150 from a Sport Mart.
[4] The final offence occurred on 19 November 2003. It was the break and enter of garage premises forming part of a residence and the owner of the home came home to discover that a break and enter of the garage had either just occurred or was in progress. It is significant that the appellant was on bail at the time of the two latter offences.
[5] The appellant has a significant Youth Court record and criminal record in adult court. He was born on 10 November 1981 and so was 22 years old at the time these sentences were imposed in Kelowna. He admits to serious addiction problems with alcohol and drugs, in particular methamphetamine and marihuana. His parents live in Castlegar but there is a court order that prohibits him from being there. He has other family in Kelowna but it appears he essentially has lived on the street and was living on the street at the time of these offences.
[6] Mr. Grave appears in person this morning on his appeal against sentence. He tells us that he will be eligible for parole in August 2004 but he seeks release prior to that date so that he can attend a treatment centre where he believes his problems can adequately be dealt with.
[7] It appears to me that Mr. Grave does have some insight into his situation. He takes full responsibility for the conduct that has placed him in jail and he expresses what appears to me to be true remorse for his conduct. It also appears from the information before us that he has some psychological issues to deal with and has been treated with both anti-psychotic and anti-depressant medication. He has a grade 11 education or at least is in the progress of completing his grade 11 education. He has no special training but tells us he has worked at a variety of unskilled jobs when he has not been in school.
[8] The learned sentencing judge addressed the principles of sentencing and focussed her attention on Mr. Grave's potential for rehabilitation. The judge was, however, also concerned to see that the public was adequately protected and because of his significant record felt that some emphasis had to be given to that aspect of the sentence. In the result she settled on a term of incarceration of two years less a day, as I have said.
[9] I must say I have considerable sympathy, Mr. Graves, for you and your situation. I believe that you are, present at least, motivated to do something about your circumstances and I wish you well in your effort to do that. However, on the case before us it does not appear to me that the judge made any error, either in the principles of sentencing or in her appreciation of either your circumstances or the circumstances of the offences for which sentences were imposed. It appears to me and it is my view that the sentence was a fit one in all the circumstances.
[10] I would grant leave to appeal but I would dismiss the appeal.
[11] HUDDART, J.A.: I agree.
[12] SAUNDERS, J.A.: I agree.
[13] FINCH, C.J.B.C.: Leave is granted. The appeal is dismissed.
"The Honourable Chief Justice Finch"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2004 BCCA 208 | Galaxy Sports Inc. v. Umbro Holdings Ltd. | 2004-04-15T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/04/02/2004bcca0208.htm | 2026-01-18T10:20:41.821000 |
2004 BCCA 208 Galaxy Sports Inc. v. Umbro Holdings Ltd.
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Galaxy Sports Inc. v. Umbro Holdings Ltd.,
2004 BCCA 208
Date: 20040415
Docket: CA031081
Between:
Galaxy Sports Inc.
Respondent
(Plaintiff)
And
Umbro Holdings Limited
Umbro Worldwide Limited
Umbro International Limited
Doughty Hanson & Co. Limited
Appellants
(Defendants)
Before:
The Honourable Madam Justice Prowse
The Honourable Madam Justice Newbury
The Honourable Madam Justice Levine
M.B. Morgan
Counsel for the Appellants
G.A. Cuttler
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
March 30, 2004
Place and Date of Judgment:
Vancouver, British Columbia
April 15, 2004
Written Reasons by:
The Honourable Madam Justice Prowse
Concurred in by:
The Honourable Madam Justice Newbury
The Honourable Madam Justice Levine
Reasons for Judgment of the Honourable Madam Justice Prowse:
NATURE OF APPEAL
[1] This is an appeal, with leave, from the order of a chambers judge providing that the respondent, Galaxy Sports Inc. ("Galaxy"), post security for costs of the action between the parties pursuant to s. 205 of the Company Act, R.S.B.C. 1996, c. 62. The order provides that $25,000 be paid into court prior to Galaxy embarking on any further interrogatories or discovery process, and that a further $50,000 be paid into court prior to the commencement of trial.
GROUNDS OF APPEAL
[2] The appellants (defendants in the action) submit that the chambers judge erred in failing to order that a greater amount of security be posted; in providing that the security could be posted in instalments, rather than forthwith; and in failing to order that the security be paid into an interest-bearing trust account at the appellants' law firm, rather than into court.
BACKGROUND
[3] The order under appeal is one of many made by a case management judge in the course of managing the lengthy and complex proceedings between the parties. The trial has been set for twenty days commencing November 20, 2004.
[4] The relevant background giving rise to this appeal is summarized in the decision of the chambers judge, reported at (2003), 45 C.B.R. (4th) 37, 2003 BCSC 965. In brief, Galaxy is a public company with shares listed on the TSX Venture Exchange. It is a former licensee of Umbro products in Canada. The appellants, Umbro Holdings Limited and related companies, are in the business of marketing and supplying soccer products. The appellant, Doughty Hanson & Co. Limited, is an investment company and a major shareholder of the appellant, Umbro Worldwide Limited.
[5] In 2001, the appellants entered into negotiations with Galaxy with a view to acquiring its shares and providing the financing required to exploit various lucrative markets. Galaxy took a number of steps in anticipation of its acquisition by the appellants, but the acquisition never occurred. The appellants withdrew from the negotiations and subsequently gave Galaxy notice that it was in default of various licences with the appellants.
[6] In the result, Galaxy made a proposal in bankruptcy on September 20, 2002. This proposal was ostensibly accepted by Galaxy's creditors, but on March 31, 2003, the acceptance was set aside by Madam Justice Brown. Brown J.'s decision was appealed to this Court and is currently under reserve.
[7] Galaxy commenced action against the appellants on October 15, 2002. The nature of that action is summarized at para. 11 of the reasons of the chambers judge:
The plaintiff's [Galaxy's] allegations are numerous and lengthy, but in essence it says that it was induced into the Big Box license by fraudulent or negligent misrepresentations as to the extent of business enjoyed by the previous licensee. It further claims that it was induced into taking over the Team License and Mass Retailer License by promises of financing and an ultimate take-over. Then the defendants [appellants] withdrew their support and the plaintiff was left with huge debts and no means of financing them. The plaintiff pleads breaches of fiduciary duty, fraudulent or negligent misrepresentations, and bad faith conduct by the defendants, all of which caused its financial demise.
[8] The appellants brought their application for security for costs because of concerns that Galaxy would be unable to pay costs in the event the appellants were ultimately successful in defending Galaxy's action. The appellants initially sought security for costs in the amount of $260,000 but acknowledged at the chambers hearing that $130,000 was a more appropriate amount. The appellants also sought to have the amount ordered paid into their lawyers' trust account pending the outcome of the action.
PROCEEDINGS IN CHAMBERS
[9] At the outset of the chambers application, Galaxy conceded that it was insolvent and that it bore the onus of establishing that an order for security for costs was not appropriate.
[10] After reviewing the history of the proceedings and the positions of the parties, the chambers judge observed that an order for security for costs was discretionary in nature and required a balancing of interests. In balancing those interests, the chambers judge made the following findings:
(1) The plaintiff's success in the suit was not obvious, but it could not be said to be without merit, and it deserved to be tried.
(2) Without making any finding of wrongdoing, it was clear that the steps taken by the appellants resulted in Galaxy's bankruptcy and that fact could be taken into account.
(3) Galaxy's claim would not be "stifled" if an order for security for costs was made, and there was no prejudice arising to Galaxy from any delay by the appellants in bringing the application.
(4) The appellants were entitled to security for costs but not in the amount they were seeking, since the effect of ordering such an amount might be to halt the litigation.
[11] In the result, the chambers judge concluded that an order for security for costs in the amount of $75,000, posted in two instalments, would most effectively balance the respective interests of the parties.
DISCUSSION
(1) Section 205 of the Company Act
[12] The order under appeal was made pursuant to s. 205 of the Company Act, which provides:
205. If a corporation is plaintiff in an action or other legal proceeding and it appears that the corporation will be unable to pay the costs of the defendant if the defendant is successful in the defence, the court may require security to be given by the corporation for those costs, and may stay all proceedings until the security is given.
(2) The Amount of Security
[13] The principal issue on appeal was whether the chambers judge erred in failing to order security for costs in the full amount claimed ($130,000). The appellants submit that the chambers judge refused to award full security for costs because she concluded that to do so would "halt the proceedings". The appellants submit that there was no evidence to support that conclusion, and, in particular, that there was no evidence that Galaxy had made efforts to obtain funding from third parties. In the absence of such evidence, the appellants submit that there was no basis for ordering security for costs in an amount less than $130,000. They rely on Kropp v. Swaneset Bay Golf Course Ltd. (1997), 29 B.C.L.R. (3d) 252 (C.A.) in support of their position.
[14] Galaxy agrees that Kropp is the leading case in this jurisdiction with respect to security for costs. In its submission, Kropp and related decisions make it clear that the decision whether to award costs is highly discretionary in nature and that this Court will be loathe to interfere with the exercise of that discretion. Galaxy further submits that Kropp does not support the proposition that full security must be awarded where there is a dearth of evidence concerning an insolvent company's efforts to obtain third party funding to pursue its litigation.
[15] In Kropp, the individual plaintiff, who was the sole shareholder of the corporate plaintiff, sued the defendants for wrongful termination of a management and development contract relating to a golf resort. The defendants applied for security for costs on the basis of searches which showed that the corporate plaintiff had no assets or business interests apart from those which were the subject of the action. A chambers judge dismissed their application on the basis that the plaintiffs would not be able to pursue their claim if security were ordered.
[16] On appeal, this Court found that the trial judge had erred in finding on the evidence that the corporate plaintiff would have difficulty in pursuing the action if security for costs were ordered. The Court stated that, in order to show that an order for security for costs would stifle its action, the corporate plaintiff had to do more than simply state that it was impecunious; it had to lead evidence indicating that it had no means of raising money for security. In the result, this Court set aside the order of the chambers judge and made an order that the corporate plaintiff post security for costs in the amount of $50,000, rather than the $95,000 sought by the defendants.
[17] In my view, the Kropp decision does not stand for the proposition that full security for costs must be ordered where the company resisting the posting of security fails to lead adequate evidence concerning its ability to obtain financial assistance from third parties. Failure to lead such evidence may well result in an order for security for costs, but the amount of security lies within the discretion of the chambers judge to be exercised having regard to a variety of considerations. Some of those considerations are set forth at para. 17 of Kropp, as follows:
1. The court has a complete discretion whether to order security, and will act in light of all the relevant circumstances;
2. The possibility or probability that the plaintiff company will be deterred from pursuing its claim is not without more sufficient reason for not ordering security;
3. The court must attempt to balance injustices arising from use of security as an instrument of oppression to stifle a legitimate claim on the one hand, and use of impecuniosity as a means of putting unfair pressure on a defendant on the other;
4. The court may have regard to the merits of the action, but should avoid going into detail on the merits unless success or failure appears obvious;
5. The court can order any amount of security up to the full amount claimed, as long as the amount is more than nominal;
6. Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled; and
7. The lateness of the application for security is a circumstance which can properly be taken into account.
[18] In my view, the reasons of the chambers judge indicate that she considered the relevant factors in finding that security for costs was justified and in fixing the amount of that security. As case management judge in a highly litigious case, she was fully aware of all of the relevant circumstances and of the need to carefully balance the interests of the parties. She was not satisfied that an award for security for costs per se would stifle the action. She was concerned, however, that a lump sum order for the full amount of security requested would, in her words, "halt the litigation, which is not my intention." From her superior view as case management judge, she was well-placed to make that determination and I am not persuaded that she erred in the amount of security she ordered to be posted.
(3) Posting in Instalments
[19] For similar reasons, I am not persuaded that the chambers judge erred in ordering that the amount of security for costs be posted in instalments. That, too, was a matter within her discretion. Certainly, there are precedents for such orders in this and other jurisdictions.
[20] The most significant concern the appellants have with this aspect of the order is its failure to set a specific date by which the second instalment of $50,000 be posted (the first instalment of $25,000 has been posted and discoveries are ongoing). Counsel for the appellants submits that the order as currently worded permits the second instalment to be posted as late as the day before the trial is set to commence. If this occurred, the appellants would not be protected if they fully prepared for trial and Galaxy (or its trustee) decided at the last minute not to proceed with the action.
[21] It does not appear that the question of precise dates for the posting of instalments was raised with the chambers judge. If this were the only ground of appeal, I would remit the issue to the chambers judge for consideration. In these circumstances, however, remitting this issue to the chambers judge would be a waste of both client and judicial resources.
[22] It is apparent from her decision that the chambers judge contemplated that the second instalment of $50,000 would be posted within a reasonable time prior to the commencement of the trial. Given the complexity of the litigation and the length of the trial (20 days), I am satisfied that a reasonable time for posting the second instalment of $50,000 is on or before September 1, 2004. I would amend the order accordingly.
(4) Where the security should be posted
[23] In their notice of motion, the appellants requested that security for costs be posted into their lawyers' trust account. It does not appear that this position was actively advocated before the chambers judge. For that reason, there is no justification for finding that the chambers judge erred in ordering that the funds be posted in court.
[24] On appeal, however, counsel for the appellants has referred to authorities which indicate that funds posted in court in circumstances such as these may be at risk of future attack by Galaxy's trustee in bankruptcy if the bankruptcy proceeds. The appellants submit that this risk would be avoided by having the funds deposited into the trust account of one of the parties pending further court order. Two of the authorities which counsel for the appellants brought to our attention in that regard are Tradmor Investments Ltd. v. Valdi Foods (1987) Inc. (1995), 33 C.B.R. (3d) 244 (Ont. Ct (Gen. Div.)), affirmed (1997), 43 C.B.R. (3d) 135 (Ont. C.A.), and Acepharm Inc. (Re) (1999), 9 C.B.R. (4th) 1 (Ont. C.A.).
[25] We do not find it necessary to determine the nature or extent of any risk to the funds in court in these circumstances since counsel for Galaxy advised that he is not opposed to an order that the funds be paid into a law firm's trust account, subject to payment out by agreement of the parties or court order. For that reason, we consider it appropriate to make such an order in this case.
CONCLUSION
[26] I would dismiss the appeal insofar as it seeks to increase the amount to be posted as security for costs. I would, however, vary the order under appeal to provide that the amount of $50,000 be posted by Galaxy on or before September 1, 2004 by payment into an interest-bearing trust account held by the appellants' law firm; that the amount of $25,000 already posted be paid into the same trust account on or before April 29, 2004; and that these funds are to remain in such trust account unless and until paid out by written agreement of the parties, or by further order of the Supreme Court.
[27] In the result, the appellants have been unsuccessful on the main issue on the appeal concerning the amount of security to be posted. I am satisfied that the other two issues could have been resolved before the chambers judge without the necessity of an appeal. I would, therefore, order that the respondents are entitled to their costs of the appeal.
"The Honourable Madam Justice Prowse"
I Agree:
"The Honourable Madam Justice Newbury"
I Agree:
"The Honourable Madam Justice Levine"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. |
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A2AJ Canadian Case Law
Last updated: 2026-03-01 Maintainer: Access to Algorithmic Justice (A2AJ)
Dataset Summary
The A2AJ Canadian Case Law dataset provides bulk, open-access full-text decisions from Canadian courts and tribunals. Each row corresponds to a single case and contains the English and French versions of the decision where both are publicly available. The project builds on an earlier version that was maintained by the Refugee Law Lab (RLL) and is now maintained by A2AJ, a research project co-hosted by York University's Osgoode Hall Law School and Toronto Metropolitan University's Lincoln Alexander School of Law. The dataset is intended to support empirical legal research, legal-tech prototyping, and language-model pre-training in the public interest—especially work that advances access to justice for marginalised and low-income communities.
Dataset Structure (~ 191k cases)
| Code | Court / Tribunal / Reporter | First document - Last document | Rows |
|---|---|---|---|
| SCC | Supreme Court of Canada | 1877-01-15 – 2026-02-19 | 10,868 |
| FCA | Federal Court of Appeal | 2001-02-01 – 2026-02-26 | 7,708 |
| FC | Federal Court | 2001-02-01 – 2026-02-27 | 35,127 |
| TCC | Tax Court of Canada | 2003-01-21 – 2026-02-23 | 8,013 |
| CMAC | Court Martial Appeal Court of Canada | 2001-01-19 – 2026-01-15 | 151 |
| CHRT | Canadian Human Rights Tribunal | 2003-01-10 – 2026-02-02 | 1,108 |
| SST | Social Security Tribunal of Canada | 2013-03-08 – 2026-01-30 | 17,379 |
| RPD | Refugee Protection Division (IRB) | 2002-07-16 – 2020-12-14 | 6,729 |
| RAD | Refugee Appeal Division (IRB) | 2013-02-19 – 2025-08-11 | 14,122 |
| RLLR | Refugee Law Lab Reporter (RPD, IRB) | 2019-01-07 – 2024-12-13 | 927 |
| BCCA | British Columbia Court of Appeal | 1999-01-04 – 2026-02-27 | 14,397 |
| BCSC | British Columbia Supreme Court | 2000-01-04 – 2026-02-26 | 50,655 |
| ONCA | Ontario Court of Appeal | 1998-06-08 – 2026-02-27 | 23,630 |
| YKCA | Yukon Court of Appeal | 2000-05-15 – 2026-01-19 | 269 |
Note: Counts are approximate and will drift as the dataset is updated.
Data Fields
| Field | Type | Description |
|---|---|---|
dataset |
string |
Abbreviation identifying the court/tribunal (see above) |
citation_en / citation_fr |
string |
Neutral citation in English / French |
citation2_en / citation2_fr |
string |
Secondary citation(s) where available |
name_en / name_fr |
string |
Style of cause |
document_date_en / document_date_fr |
datetime64[ns, UTC] |
Decision date |
url_en / url_fr |
string |
Source URL for the official online version |
scraped_timestamp_en / scraped_timestamp_fr |
datetime64[ns, UTC] |
Timestamp when the page was scraped |
unofficial_text_en / unofficial_text_fr |
string |
Full unofficial text of the decision |
upstream_license |
string |
License terms from the source court/tribunal |
Missing values are represented as empty strings ("") or NaN.
Data Languages
Where availble, rows include both English and French texts. Where only one language is published, the fields for the other language are empty.
Data Splits
All rows are provided in a single train split.
Data Loading
from datasets import load_dataset
import pandas as pd
# load decisions for a specific court / tribunal (e.g. Supreme Court of Canada)
cases = load_dataset("a2aj/canadian-case-law", data_dir = "SCC", split="train")
## ALTERNATIVELY
## load the entire corpus
# cases = load_dataset("a2aj/canadian-case-law", split="train")
# covert to df
df = cases.to_pandas()
df.head(5)
The dataset is also offered in Parquet format for fast local use. Files are in subfolders with the court/tribunal names.
Dataset Creation
Curation Rationale
Building on the RLL's earlier bulk-data programme, A2AJ is collecting and sharing Canadian legal data to:
- democratise access to Canadian jurisprudence;
- enable large-scale empirical legal studies; and
- support responsible AI development for the justice sector.
We scrape data only where we are permitted to do so by terms of service of websites that host the data. We also obtain some additional data directly from courts and tribunals.
Source Data & Normalisation
Cases are scraped directly from the official websites of the respective courts and tribunals, or is obtained directly from the tribunals through email or other distruction processes. Where possible, text is stored verbatim with minimal normalisation (e.g. HTML → plain text, whitespace cleanup).
Personal & Sensitive Information
Court and tribunal decisions can contain sensitive personal information. Although all documents are already public, easy bulk access increases privacy risk—particularly for refugees, criminal-justice-involved persons and other marginalised groups. Users who reproduce the data from this dataset are responsible for complying with relevant privacy laws, as well as other laws relating to disseminating information such as publication bans.
Non-Official Versions & Disclaimer
The texts here are unofficial copies. For authoritative versions, consult the URLs in url_en / url_fr.
Non-Affiliation / Endorsement
A2AJ and the production of this dataset are not affiliated with, nor endorsed by, the Government of Canada, provincial courts, or the listed tribunals.
Considerations for Using the Data
- Social Impact. Open legal data can reduce information asymmetries but also facilitate surveillance or discriminatory profiling. We encourage downstream users to collaborate with community organisations and ensure that derivative tools advance—rather than undermine—access to justice.
- Bias & Representativeness. Published decisions are not a random sample of disputes. For example, positive administrative decisions are less likely to be appealed and thus under-represented in court records. Models trained on this corpus may therefore skew negative.
- Limitations. The dataset excludes annexes, schedules and appendices that are sometimes attached as separate PDFs. Long historical gaps exist for some courts (e.g. ONCA pre-1990).
Licensing Information
The code used to create the dataset by the A2AJ and any work on the dataset undertaken by the A2AJ is subject to an open source MIT license.
Users must also comply with upstream licenses found in the upstream_license field in the dataset for each document, which reflects the licenses through which the A2AJ obtained the document. These upstream licenses may include limits on commercial use, as well as other limitations.
The A2AJ is committed to open source methodologies, and we are actively working to obtain more permissive licenses for this data.
Warranties / Representations
While we make best efforts to ensure the completeness and accuracy of the dataset, we provide no warranties regarding completeness or accuracy. The data were collected through automated processes and may contain errors. Always verify data against the official source.
Dataset Curators
- Sean Rehaag - Co-Diretor, A2AJ
- Simon Wallace - Co-Director, A2AJ
- Contact: [email protected]
Citation
Sean Rehaag & Simon Wallace, "A2AJ Canadian Case Law" (2025), online: Hugging Face Datasets https://huggingface.co/datasets/a2aj/canadian-case-law.
Acknowledgements
This research output is supported in part by funding from the Law Foundation of Ontario and the Social Scienes and Humanities Research Council of Canada, by in-kind compute from the Digital Research Alliance of Canada and by adminstrative support from the Centre for Refugee Studies, the Refugee Law Lab, and Osgoode Hall Law School. We also thank the Canadian judiciary and tribunal staff who publish decisions in open formats.
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